- (1.) G. K. Mathur, J. This appeal is directed against the judgment and order dated 30th January, 1979 passed by Sri R. S. Agrawal, II Additional Sessions Judge, Aligarh in Sessions Trial No. 465 of 1977 by which Daya Ram ' been convicted for the offences punishable under Sections 148, I. P. C. , 323/149 I. P. C. , 324/149, I. P. C. 325/149, I. P. C. and sentenced to undergo rigorous imprisonment for a period of one year, six months, two years and three years under those sections respectively. Daya Ram has been further convicted for the offence punishable under Section 302, I. P. C. and sentenced to undergo life imprisonment. The appellants Radhey Shyam and Subhash have been convicted for the offences punishable under Sections 148, 323/149, 324/149, 325/149 and 326/149, I. P. C. and each one has been sentenced to undergo'rigorous imprisonment for a period of one year, six months, three years and four years for the aforesaid offences respectively. Appellants far Chand and Vijai have been convicted for the offences punishable under Sections 147, I. P. C. 323/149, 324/149, 325/149 and 326/149, I. P C. and each has been sentenced to undergo rigorous imprisonment for a period of six months, two years, three years and four years for each count respectively. The sentences of the accused persons have been made to run concurrently.
(2.) THE prosecution case, in brief, is that when Ramesh, Bhagwati Prasad, Laxmi Narain and Pooran Mai (P. W. 1) were sitting and talking amongst themselves, accused Subhash came out of his Nohara at about 10. 00 p. m. on 5th October, 1977 and asked them in abusive language to stop talking as he was studying and when Pooian Mai took exception to the abusive language of Subhash, he went away to his house saying that "sale MAN TO ABH1 JAOGE". It is alleged that after a little while, Daya Ram, Radhey Shyam Subhash armed with spear, Har Chand and Vijai armed with Lathi came on the Chaupal and when they advanced to assault Pooran Mai and others sitting on the Chaupal (P. W. 6) Chameli wife of Pooran Mai and Smt. Punia wife of Bhagwati Prasad came out of the house on the Chaupal and they all raised alarm for safety due to which (P. W. 4) Kali Charan, Lakhpat, (P. W. 5) Gulab etc. arrived there with torches. It is alleged that Daya Ram gave a piercing blow of spear to Laxmi Narain and the other accused persons caused injuries with their weapons to Pooran Mai, Bhagwati Prasad, Smt. Chameli and Smt. Punia, Laxmi Narain, according to the prosecution, after receiving the spear blow, fell down on the Chaupal and died. Pooran Mai, according to prosecution, got the report Ext. Ka. 1 of the incident written from Lakhpati Singh in the morning of 6th October, 1977 and lodged it at the Police Station Gonda, district Aligarh at 6. 30 a. m. which is situated at a distance of three miles. Check report Ex. Ka. 8 was prepared on its basis and the substance thereof was entered in the General Diary at serial No. 6 (Ex. Ka 9) by Babu Ram Yadav Head Constable. P. W. 8 A. K. Yadava, Station Officer, Police Station Gonda made the investigation of the case, prepared site-plan (Ex. Ka. 10) and got prepared inquest report Ex. Ka. 11, Naksha Nash Ex. Ka. 12, Challan report Ex. Ka. 13, by S. I. Giriraj Singh. ' He also took in possession blood-stained earth and sample of plain earth from the spot vide memo Ex. Ka. 15.
(3.) DR. A. K. Garg, Medical Officer, Primary Health Centre, Gonda made the medical examination of the injuries of Pooran Mai, Smt. Punia, Bhagwati Prasad and Smt. Cnameli on 6th October, 1977 from 11. 30 a. m. to 12. 05 and prepared injury reports Exs. Ka. 6, Ka. 5, Ka. 4 and K. 3 respec tively'. P. W. 7 DR. S N. Agrawal Radiologist, Malkhan Singh Hospital, Aligarh after taking X-ray of left shoulder of Smt. Cuameli on 7th October, 1977, found a crack fracture of greater tuberosity of upper and left humorous bone vide X-ray report Ex. Ka. 9. P. W. 2, Dr. V. K. Sarikwal, Medical Officer, Malkhan Singh Hospital, Aligarh made the post mortem examination on the body of Laxmi Narain at 3. 00 p. m. on 7th October, 1977. According to him the deceased was aged about 48 years. He found the following ante mortem injuries : 1 An oblique punctured wound 2x1" abdominal cavity deep and left side abdomen 6" blow left nipple at six o' clock position. Margins were clean cut. Both the angles were clean cut. The direction of the wound was upward. A part of the greater omen-turn was coming out of the wound. 2. Contusion 8x2" on the left lower and back side of the chest. J. I. C.-;