VINOD PRASAD, J. - (1.) FATHER Rama Shankar(A1) and his two sons Kapil Muni(A2) and Kapil Deo(A3) are aggrieved by the their conviction under Section 326 I.P.C. and imposed sentence of six months RI, recorded by the IIIrd Additional Sessions Judge, Basti in Sessions Trial No. 150 of 1974, State Vs. Kapil Muni and others, vide impugned judgment and order dated 27.07.1976, and therefore, have knocked the door of this court, u/S 374 (2) Cr.PC. by preferring instant appeal, questioning their aforementioned conviction and sentence.
(2.) PROSECUTION case, in nutshell, as is contained in written F.I.R. exhibit Ka-1 and Chick F.I.R. Ext. Ka- 8 indicate that since last more than a decade, flowing of drainage water was an apple of discard between the families of informant Durga Prasad Pandey, r/o village Hirdayajot, P.S. Kotwali, District Basti,PW1, and his next door neighbor A1,who both were collaterals. A1 wanted drain to flow from the plot and land of PW1 because of which dispute existed. Motivated by aforesaid discard, on 06.12.1972 at 5/6 a.m., appellants A1 to3, were erecting a mud wall obstruction adjacent to the Dhari of PW1, which was objected to by Smt. Kalpa Devi, informant's mother, on which A1 to3 started abusing her. Commotion attracted PW1, his brother Ram Keval, wife Shobha Devi, elder sister-in-law(Bhabhi) Sona Devi at the scene , who all challenged the appellants by questioning as to why they were digging wall and abusing as well, on which A1 instigated, and then he alongwith others A2, A3,Shiv Shankar , Lallu, Lallan, wife of Rama Shankar, Vishwanath, Radhey Shyam, Ghanshayam, arrived at the scene and started assaulting prosecution side with Lathi, Ballam, Spade, bricks and stones. Informant and his family members raised alarm which attracted witnesses Ram Lal Koiri, Dularey Koiri, Kanahai, Deen Dayal Tripathi, Ram Shabd,Ram Ashish and many others at the scene of the incident. Spotting witnesses, accused sprinted away from the occurrence spot. Informant Durga Prasad Pandey PW1 thereafter scribed F.I.R. Exhibit Ka-1, and after covering a distance of 4 miles got it registered at PS Kotwali at 08.15 a.m. same day, as crime no. 804/72, u/s 147, 148, 149, 323, 307 I.P.C. vide chik FIR Exhibit ka- 8, prepared by head constable Laxmi Shankar Dubey, PW4, who had also penned down G.D. entry Exhibit ka-9. From the prosecution side five persons had sustained injuries in the incident and were examined on 06.12.1972 by PW3 Dr. D.P.Mukherjee. Durga Prasad Pandey was examined at 8.45a.m.,Ram Keval Pandey at 9 a.m., Kalpa Devi at10 a.m. Smt. Sona at 1.45p.m. and Smt. Shobha Devi at 1.50 p.m. vide Exhibits ka 3 to ka 7, facts noted in those medical examination reports, in a seriatim,were as follows:- Ext. Ka 3 " Durga Prasad Pandey s/o Bhawani Bheek Pandey, 28 years, R/o Herdaijot B/B Cont. No. 209 Ram Singhasan Yadav,PS Kotwali District Basti. M/o Black mole Rt pinna ear AMI- 1. Abression 3c.m. x 2 m.m. Bridge of Nose 1 c.m. 2. Abression 3c.m. x 0.5 c.m. on the outer and lower part of Lt. fore arm. 3. Contusion 5c.m.x 1.5 c.m. Lt. upper arm upper third outer aspect oblique 4. Abression 1c.m.x 0.5 c.m. Backof Rt. elobow. 5. Incise wound 2 c.m. 0.3c.m. x 0.3c.m. upper and outer part of Rt. thigh 20c.m. above Rt. knee oblique tailing medially produces a linear abression 5c.m. long 6. Incise wound 1.5 c.m. x 0.4 c.m. x 0.5 c.m. Rt. leg middle 13 c.m. below Rt. knee, outer aspect, transverse. No Tailing. injuries all fresh,injuries all simple, No. 1,2,4 by friction, No. 3 by Blunt weapon, No. 5, 6 by Sharp Weapon. 6/12/1972" Ext. Ka4 "Ram Kewal Pandey, 22yrs, s/o Bhawani Bheek PandeyR/o Herdaijot B/B Cont.No.209 Ram Singhasan Yadav, PS Kotwali District Basti M/o Black mole Rt Check middle AMI- 1. Incised punchered wound 5 m.m. x 3m.m. x not proped due to medical grunds broon part of Sternem + 16 c.m. above umbilicus. Transverse. 2. Incised wound 5 c.m. x 1c.m. x Bone cut on Rt. hand dorsal aspect upper side/. Tailing uper ds + outwards . (just above the a roof of little ring and middle finger). No X-ray. 3. Abrasion 1.5 cm x 1 cm dorsal aspect of left thumb middle. 4. C/o of Pam back. No mark of injury present. All injuries fresh (red bleeding),No. 1 and 2 and No. 3 simple. No. 1 and 2 by sharp object., No. 3 by friction. 6.12.1972 Ext. Ka-5 Kalpa Devi 65 years,W/o Bhawani Bhikh Pandey AMI- 1. Lacerated wound 1.5 cm x o.5 cm x .3 cm on the top of head 14 cm above right ear. 7 cm above roof of nose vertical. 2. Lacerated wound 2 cm x .3 cm x .3 cm on the head 3 cm front of injury no. 1 vertical. 3. Lacerated wound .6 cm x .4 cm x .3 cm on the right side back of head 10 cm above right ear and 4.5 cm below injury no. 1/. 4 Abrasion 5 cm x 1.5 cm on the right side back of chest 2 cm below injuries angle of right seapula. 5. Abrasion .5 cm x .3 cm on the top of right shoulder. 6. Incise wound 1 cm x .4 cm x .2 cm on the upper and front part of left leg 1cm below right knee. Transverse. No. All injuries fresh (red blooding),All injuries simple No. 1 to 3 by blunt weapon. No. 4 by fiction, No. 6 by sharp weapon. Ext. Ka 6 Sobha Devi 22 years AMI- 1. Abrasion 4 cm x 1 cm middle of left upper arm front 5 cm above elbow front. 2. Abrasion 3 cm x 1.5 cm front of Lt. forearm 4 cm below Lt. elbow. 3. Abrasion 3.5 cm x 1.3 cm front of neck lower part. All injuries fresh (red),All injuries simple,All by friction Ext ka 7 Smt. Sona 25 years,W/o Ram Ajor Pandey AMI- 1. Abrasion 1 cm x .5 cm right side forehead 4 cm above Rt. eyebrow. 2. Abrasion .6 cm x .4 cm middle + back of Rt. middle finger. 3. C/o Pain Rt. shoulder. Np mark of injury present. Both injuries fresh (red),Both by friction, Both simple Investigation into the offences was conducted by S.O. C.B.Tripathi, who was not examined during the trial and PW4 proved site plan Ext. Ka-11 and charge sheet submitted by him Ext. ka-12. Since all the appellants were charge sheeted, they were summoned by the Magistrate, who finding their case triable by Session's Court, committed it for trial before it. IIIrd Additional Session's Judge, Basti charged accused for offences u/s 147, 307/149, 323/149 and 324/149 I.P.C. on 01.03.1976 and since all the accused abjured those charges and claimed to be tried, therefore, to establish their guilt, prosecution commenced trial proceedings. Prosecution during trial examined four witnesses in all, out of whom informant Durga Prasad Pandey PW1, injured Ram Kewal Pandey, PW2 where the only two fact witnesses. Formal witnesses included Dr. D.P. Mukherjee, PW3 and head constable Laxmi Shankar Dubey PW4. Accused in their statement under Section 313 Cr.P.C., pleaded right of private defence and negated prosecution allegations. To substantiate their plea of right of private defence of person and property both, they examined DW 2, Dr. S.C. Srivastava, Medical Officer, District Jail, Basti and filed three medical reports of Malti Devi, Kapil Muni Pandey, Ram Shankar as Ext. Kha 1 to 3. They also filed an application Ext. Kha- 6 moved by Ram Shankar Pandey to Collector Basti. Injury reports of three injured from the side of accused Ext. Kha1 to Kha 3, proved by the jail doctor DW1 were as follows:- Ext. Kha1 "Smt. Malti Devi 40 years AMI- 1. C/o Pain outer side of upper half of the forearm tendernus present. No other external evidence of injury. 2. Complaining of pain upper part of Lt. thumb and caspo phelengeal joint. No. external evidence of injury. 3. Two abrasions .3 cm x .1 cm and 1.5 cm x .1 cm situated 1 cm upper on Rt side of lower 1/3 of back, 13 cm outer to spine scab present. 4. Contusion 2cm x .5 cm on the front of Lt knee joint. Colours black directions oblige. Opinion Injury no. 3 has been caused by friction against rough surface. Injury no. 4 has been caused by some blunt object . Duration about two days, nature of injury simple. Ext. Kha2 Sri Kapil Muni Pandey aged about 17 years AMI- 1. Abrasion .5 cm x .3 cm on the left side of scalp 6 cm above. The outer side of left eyebrow and 6 cm from left ear. Scalp present slight swelling around the injury present. 2. Complaining of pain inner + of left forearm in the lower 1/3 part. No external evidence of injury. opinion Injury no. 1 has been caused by friction against rough surface. Duration -about two days, nature of injury simple. Ext. Kha3 Ram Shanker aged about 50 years AMI- 1. Abrasion .7 cm x .3 cm on the lower1/3 of spine scalp present. 2. Swelling and tendernus middle 1/3 of back of left thigh. No external evidence of injury. 3. Swelling and tendernus 3 cm x 2 cm on the inner and back of the left forearm. 4 cm above the left wrist joint. No external evidence of injury. Opinion Injury no. 1 has been caused by friction against rough surface. Duration- about two days, nature injury simple." IIIrd Additional Session Judge, Basti, after critically appreciating prosecution and defence evidences concluded that the prosecutions has not be able to establish charges against seven of the accused and therefore, acquitted all of them, namely Shiv Shankar, Lallu, Lallan, Smt. Malti Devi, Radhey Shyam, Vishwanath, and Hari Shyam, from all the charges. Trial Judge also disbelieved prosecution version in respect of commission of crimes U/S 147, 307/149, 323/149 against all the accused and therefore acquitted all them of those offences. However it held that guilt of appellants U/S 326 IPC is established to the hilt beyond any shadow of doubt and therefore convicted and sentenced them as mentioned above in the opening paragraph in this judgment. Challenge to the aforesaid conviction and sentence is in this appeal.
(3.) THE appeal was filed in this Court in the year 1976 and when it was called out for hearing, nobody appeared from the side of the appellants to argue the appeal on their behalf and hence, not to further delay final hearing of appeal, and in consonance with apex court decision in State of U.P. versus Bani Singh: AIR 1996 SC 2368, Sri Devendra Mohan Singh was appointed amicus curie to argue the appeal on behalf of appellants.;