M.C.JAIN, J. - (1.) THIS appeal has been filed by five appellants 1. Rama Shankar, 2. Doodh Nath, 3. Ram Jeet, 4. Ram Janam and 5. Baijnath against the judgment and order dated 29th May, 1993 passed by Sri S.M. Pandey, the then Special Judge/Additional Sessions Judge, Ballia in Sessions Trial No. 159 of 1985. Rama Shanker and Ram Jeet have been convicted under Section 302, I.P.C. and sentenced to life imprisonment and the remaining three have been convicted and sentenced to life imprisonment under Section 302, I.P.C. read with Section 149, I.P.C. The accused -appellants -Rama Shankar, Ram Jeet and Ram Janam have further been convicted under Section 148, I.P.C. and each of them has been sentenced to rigorous imprisonment for two years. The remaining accused - appellants have been convicted under Section 147, I.P.C. and each of them has been sentenced to one year's rigorous imprisonment. The accused -appellant - Doodh Nath has been convicted under Section 323, I.P.C. and sentenced to nine months' rigorous imprisonment whereas the remaining accused -appellants have been convicted under Section 323 read with Section 149, I.P.C. and each of them has been sentenced to six months' rigorous imprisonment. All the substantive sentences have been ordered to run concurrently.
(2.) ALONG with the accused -appellants five others, namely, Keshav, Deep Chand, Ramesh, Prem Chand and Shyamu were also tried but they were acquitted. The lives of two persons, namely, Ramesh and Nayak had been cut short in this incident and the informant Ram Awadh P.W. 1 had sustained injuries. The incident took place on 17 -6 -1985 at about 8.30 a.m. in village Khuta Bahorwa, Police Station Bhimpura, District Ballia. The First Information Report was lodged by the injured Ram Awadh P.W. 1 at 10.05 a.m. The distance of the Police Station from the place of occurrence was three miles. The prosecution case as emerging from the First Information Report and the evidence adduced in the Court was that the informant Ram Awadh had his agricultural field in the north eastern side of his house and well in which he had sown paddy seed the day preceding the day of incident. On the day of the incident at about 7.30 a.m., the son of accused -Baijnath threw brick bats and pieces of stones in his said field. Ram Awadh P.W. 1 was standing at his well at that time and he asked Baijnath's son not to do so. Thereupon, all the accused persons rushed up and started assaulting him. Rama Shankar, Ram Jeet and Ram Janam appellants were armed with Pharsas. Prem Chand and Shyamu (acquitted) were armed with spears. The rest had lathis. His son Ramesh and brother Nayak came to his rescue. Rama Shankar assaulted Ramesh with Pharsa and cut his arm. Ram Jeet assaulted Nayak with Pharsa and his arm was also cut. Doodh Nath assaulted Ram Awadh with lathi. The remaining accused persons also alleged participated in the assault. He ran inside his house but the accused persons reached there too with their weapons. The incident was witnessed by Pati Ram, Nanku and several others of the village. The woman -folk and children of his family also threw brick bats and stone ballasts on the accused persons. The accused persons left the scene. The badly injured Ramesh and Nayak were placed on cots and Ram Awadh P.W. 1 took them to the Police Station. There he lodged the First Information Report Ex. Ka1. The injured were sent to the hospital for medical examination and treatment. Thereafter, Ramesh and Nayak were taken to Ballia because of their serious condition. Ramesh died before reaching Ballia, Nayak was alive till he was taken to District hospital, Ballia but he also died of the injuries in the evening. Consequent upon the death of Ramesh and Nayak the case was converted, inter alia, under Section 304, I.P.C.
(3.) IT would be relevant here to state that Nayak was examined at P.H.C. Nagra by Dr. R.C. Prasad P.W. 5 on 17 -6 -1985 at 12.10 p.m. The following injuries were found on his person : 1. Incised wound on the left side of shoulder measuring about 15 cm. x 8 cm. x bone deep. Margins irregular and cutting of particular joint of scapula. There was also cutting of veins and nerves, oozing fresh blood. 2. Abrasion on the right side of upper thigh measuring about 3 cm. x 15 cm., colour red extending downwards medially. 3. Abrasion on the lower part of chin measuring about 4 cm x 2 cm., colour red, 10 cm. below the lip. 4. Contusion on the left side of lip just below the eyelid measuring about 3 cm. x 1 cm. colour red. ;