U.K.Varma. J. - (1.) Kali Charan, Parma, Antu, Sheo Nath, Nankhu Jai Shri, Ram Dass, Khatai, Mithai, Miththu, Chhedi, Chuttur, Jiya Lat, Narain, Shyam Lat, Om Nath, Kallu Nath, Jagar Nath, Khelawan Bipat, Ramdhani, Khurbhur, Kharbhan and Nakhru have been convicted under Sections 147,302/149,325/149, 323/149 and 436/149 of the Indian Penal Code and sentenced to one year Rigorous Imprisonment on the first count, to imprisonment for life on the second count, to three years Rigorous Imprisonment on the third count, to six months Rigorous Imprisonment of the fourth count and to five years Rigorous Imprisonment on the fifth count. The appellant Han Das had been convicted under Section 436 of the Indian Penal Code simpliciter and sentenced to seven years Rigorous Imprisonment. He had also been convicted and sentenced in the same manner as the other appellants in respect of offences other than that under Section 436 of the Indian Penal Code. This impugned judgment convicting and sentencing the twenty-five appellants as above had been pronounced by Shri A.B. Hajela, IV Add. District and Sessions Judge, Varanasi. During the pendency of this appeal the appellants Kali Olaian and Jagarmath died. The present appeal has been heard on behalf of the twenty-three appellant intimated to be alive.
(2.) In the First Information Report it has been pointed that the twenty five appellants who were Harijans by caste and were related in between on account of old enmity came armed with lathies and clubs and assaulted Sharda, Hira, Kanta, Laxman and the informant Banga and burnt the hut of Banga and broke the branches of his neem tree. The incident had taken place at 7.00 a.m. on 24-3-1978 in village Mehdi and report about it was lodged at 9.15 a.m. in the Police Station Mirzamurad which is at a distance of five miles from the village Mehdi. The injured Banga, Hira and Sharda were medically examined between 8.30 a.m. and 8.50 p.m. in the Primary Health Centre. The injury report of Banga shows him to have sustained the following wounds; 1 Lacerated wound 1/211 x 2 mm. x skin deep on the base of right thumb. 2. Traumatic swelling 2 x 1 on the medial side of right leg 6 below the knee.
(3.) Traumatic swelling 1 x 1h/2 on the medial side of right knee. The injury report of Hira shows him to have been inflicted the following injuries. 1. Traumatic swelling 1h/2 x 1h/2 on the bridge of the nose. 2. Contusion 1 x 1 on the lower eye. The injury report of Sharda indicates that he had suffered as follows. 1. Fracture of right radius and ulna shaft 31/211 above the wrist joint. Bony deformity of right forearm 2. Traumatic swelling of whole of the right forearm. 3. Abrasion 1 cm x 1 cm. on the posterior side of right forearm 31/2 above the wrist joint. The injured Hira who in the above injury report, Ex-Ka-4, was shown to be seventy years of age expired at 10.30 p.m. on 31-3-1976. His postmortem report, Ex-Ka-2 on record, discloses that Page no. 206 due to misprint gave out that the appellants had assaulted simultaneously. Kanta does not appear to have been present at the time of the incident or else his statement would not have been different from Banga and Sharda. An analysis of the statements of Banga P.W. 1 and Sharda P.W. 2 would lead to the conclusion that Ram Das had assaulted Sharda, Chedi had assaulted Banga and the brick bat palted by Antu stuck Hira and Han Das burnt the hut. The incident does not appear to be the result of prior planning for had it been so the assault would have been simultaneous and not one by one as given out by Banga P.W. 1 and Sharda P.W. 2 and at least any one of the assailants would have caused injury to more than one person. Each of these appellants Ram Das, Chedi, Antu, and Han Das appears to us to be answerable for the case and Section 34 is not attracted. Besides if there was any intent to kill Hira, the appellants could not have started running when he fell down as a result of brick bat hit as given out by Sharda P.W. 2 Both the injuries of Hira appear to have been caused to him by just one brick bat hurled by Antu which had not been aimed at him in all probability for he had come later to pacify the quarrel. If any of would have sustained if not more, at least a few lathi injuries near his knee and Sharda three injuries number after forming an unlawful assembly would have come to assault no account of enmity or to forcibly occupy any land of which the First Information Report or totally silent. Banga and Sharda because of the death of Hira appear to us upto have taken undue advantage to rope in the appellants were running away it could only be deemed to be his own act and it could only be viewed as in prosecution of the common object of the others.;