SURENDRA SINGH, J. - (1.) THE challenge in this appeal is the judgment and order dated 7.1.1982 passed by IInd Additional Sessions Judge, Ghazipur, in S.T. No.218 of 1979 (State Versus Tarkeshwar Nath Chaubey and others), convicting and sentencing the Appellants under Section 302/149 IPC for the life imprisonment, under Section 307/149 IPC for four years rigorous imprisonment and under Section 323 read with Section 149 for six months rigorous imprisonment. THE FACTS
(2.) THE incident is said to have taken place on 22.6.1978 at about 7:00 hours. In this incident one Hardev Lonia (Deceased) died. Ravindra Nath Chaubey (the Informant) lodged the FIR on the same day at about 13:30 hours at Police Station Dildar Nagar, District Ghazipur. The allegations as contained in the FIR are as follows; Hardeo (Deceased), his sons, Sankatha and Kalika as well as his wife Smt. Janak Dulari and Smt. Lalita wife of his son (Sankatha) were present at their house; Accused-Appellant no.3 Ramakant came alongwith female servant with a basket of cow dung upon her head. He got the cow dung kept in the north-western corner of the disputed land near the neem tree. Hardeo (Deceased) interfered and asked Accused Appellant Ramakant not to put cow dung on his land and threw the cow dung kept there. Accused Ramakant went away from the spot uttering that he would see him right immediately. Thus after four or five minutes all the Accused Appellants and five others came at the disputed land. Accused Ramakant and Krishna Kumar @ Menon (acquitted) were armed with spears while rest of the Accused armed with lathis started beating the Deceased (Hardeo). His sons, Sankatha and Kalika as well as his wife Janak Dulari and Smt. Lalita wife of Sankatha are said to have rushed for the rescue of the Deceased (Hardeo). Deceased (Hardeo) ran towards east with a view to save his life and all the aforesaid continued to chase and beat him. Deceased (Hardeo) fell down near the north-western corner of the house of Ram Chandra Seth and when Sankatha and Kalika as well as his wife Janak Dulari and Smt. Lalita wife of Sankatha tried to save him, they were also beaten and sustained injuries on their persons. Hardeo died instantaneously on the spot on account of injuries sustained by him and thereby his dead body was dragged by the Accused persons named above towards west.
(3.) SHORN of unnecessary details, briefly stated facts of the case are as follows: According to the prosecution on 22.6.1971, at abut 8.15 hours, at police station Dildar Nagar, Ghazipur situated at a distance of three miles to the north west of the village Pachokhar where the incident is alleged to have taken place at about 7 hours on the same day, the Informant Kalika lodged a written report (Ex Ka-2) purported to have been written by Head Constable of P.S. Dildar Nagar, District Ghazipur; As gleaned from the FIR, the occurrence was seen by Supher (PW-7) and other persons of the village also. Hardeo died on the spot and the injured persons were sent for medical examination soon thereafter; SI Paras Nath Singh (PW-9) in whose presence FIR was lodged, started investigation of the case. He recorded the statement of the First Informant Kalika and thereafter reached at the place of occurrence. He went at the door of Tarkeshwar Nath, Appellant no.1 and found dead body of Hardeo lying there. He conducted inquest proceeding and prepared other papers for sending the dead body for the purposes of postmortem examination through Constable Shiv Ji. The witnesses, Supher and others were examined and their statement were also examined under Section 161 CrPC. The IO of the case thereafter prepared site plan (Ex Ka-18). He collected the blood from the north western corner of the house of one, Ram Chandra Seth. The blood stained and plain soil were also collected and sealed at the spot and marked as Ex Ka-19 and Ex Ka-20). INJURIES OF THE INFORMANT'S SIDE 1. Sankatha Prasad: He was examined on 22.6.1978, at 3:30pm by Dr KK Srivastava (PW-4). He found the following injuries on his person: Incised wound 4cm x 2cm x bone deep on the right elbow 26cm above the right wrist. Advised X-ray; Incised wound 3.5 x 1cm x muscle deep on the right shoulder, 13cm below the top of right shoulder; Incised wound 2cm x 0.5cm x muscle deep on right shoulder, 10cm above the lower angle of right shoulder blade; Lacerated wound 3.5cm x 0.5cm x bone deep on the scalp, 8cm above the right ear. Advised X-ray; Lacerated wound 2cm x 0.5cm x muscle deep on the scalp, 16cm above the root of the nose. 2. Kalika: He was examined on 22.6.1978, at 7:10pm in the District Hospital, Ghazipur by Dr KK Srivastava (PW-4). He found the following injuries on her person: Punctured wound 1cm x 0.2cm x peritoneal cavity deep. Punctured wound on the abdomen 7cm above the navel. Advised X-ray; Incised wound 0.5cm x 0.2cm x muscle deep on the chest, 3cm inner to the left nipple. Advised X-ray; Lacerated wound 2cm x 0.3cm x skin deep on the forehead, 0.5 above the root of the nose; Lacerated wound 0.5cm x 0.3cm x skin deep on the front surface of right leg, 9cm below the tibial tuberosity. 3. Smt Janak Dulari, wife of Hardeo: She was examined on 22.6.1978, at 7:40pm by Dr KK Srivastava (PW-4). He found the following injuries on her person: Swelling 10cm x 9cm on the back of left hadn, 1cm below the left wrist tender. Advised X-ray; Painful swelling 6cm x 8cm on the outer aspect of right thigh, 24cm above the right knee. Advised X-ray. 4. Smt. Lalita, wife of Sankatha Prasad: She was examined on 22.6.1978 at 7:50pm by Dr KK Srivastava (PW-4) and the Injured was complaining pain over her right shoulder.;