HARI HAR BHAGWAN DIN Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed by Hari Har, Ram Sagar Matau, Rameshwar, Bansi, Nanhey, Sheo Das and Sri Krishna against their conviction and sentences passed by the Assistant: Sessions Judge, Bara Banki by his judgment and order dated 27-2-1969. Nanhey appellant has been convicted Under Section 326 read with Section 149, Indian Penal Code and sentenced to rigorous imprisonment for seven years and to a fine of Rs. 400/- in default of payment of which he has been directed to undergo rigorous imprisonment for a further term of eight months. The remaining appellants have also been convicted Under Section 326 read with Section 149, Indian Penal Code and each of them has been sentenced to rigorous imprisonment for five years and to a fine of Rs. 200/- and in default to and Sri Krishna have been convicted under (sic) Section 148. Indian Penal Code and each of them has been sentenced to rigorous imprisonment for two years under that count. The rest have been convicted additionally Under Section 147, Indian Penal Code and each has been sentenced to rigorous imprisonment for one year. The sentences have been directed to run concurrently.

(2.) THE victim of the incident was one Sheo Charan (P. W. 1 ). According to the prosecution case his house and the house of Hari Har appellant lay closeby in Village Baraulia, Police Station Ram Nagar, district Bara Banki. The house of Hari Har according to the prosecution existed there for the last about 15 years. Water of a spout used to flow from the house of Sheo Charan through land lying in front of the house of appellant Hari Har to which the latter used to object. This had been a cause of friction between this appellant and Sheo Charan for the last many years before the occurrence. Sheo Charan was prosecuted 4 or 5 years before the occurrence for the murder of one Gaya Prasad of the village. Gaya Prasad belonged to the family of Hari Har. The case ended in acquittal of Sheo Charan and this according to the prosecution further provided cause for secret bitterness to Hari Har against Sheo Charan. Sometime after acquittal of Sheo Charan in the said case there were proceedings Under Section 107, Code of Criminal Procedure in which the present appellant were arrayed on one side and Sheo Charan was. arrayed on the other side along with Baldeo Prasad (P. W. 4), Babu Lai (P:w. 5) and several others. About eight days before the instant occurrence there was another quarrel between Hari Har and Sheo Charan over the flow of water from the former's Nabdan on land in front of latter's house in which abuses were bandied and Hari Har parted after uttering threats to Sheo Charan. This according to the prosecution provided the immediate motive for the assault. It is said that on 15-4-1967 at about 4 P. M. when Sheo Charan was drawing water from a well lying in front of his house all the appellants suddenly came armed with various weapons. Bansi, Nanhey and Sri Krishna had Kantas; Nanhey possessed a knife also and the remaining appellants carried lathis. They set upon Sheo Charan with, these yeapons and caused him a number of injuries. After he had fallen Nanhey took out a knife and struck with it at both of his eyes. The alarm of the victim attracted Jagannath (P. W. 3), Baldeo Prasad (P. W. 4), Babu Lal (P. W. 5) and several other witnesses who were said to have seen the assault, Sheo Charan was then carried on a cot to the police station which was 7v2 miles away and the first report of the incident was lodged by him at 0. 30 hours on 16-4-1967 containing a substance of the above narrative. In this report all the appellants were named. Sheo Charan Was examined by Dr. D. M. Saxena who found on his person 22 injuries including six incised wounds a linear cut four abrasions, a swelling and contusions. All these injuries were pronounced by the doctor to be simple in nature. He had found one incised wound on the left upper lid below the left eye-brow and another incised wound on the right upper lid in the middle. Investigation was commenced by the Station Officer Incharge Police Station Ram Nagar on 18-4-1967 after his return to the police station from leave. He found blood lying at the place of occurrence and seized bloodstained earth but there was no evidence to suggest that it - was sent to the Chemical Examiner or the Serologist.

(3.) ALL the appellants pleaded not guilty to the charges framed against them and alleged false implication, They disputed not only the place but also the time of assault suggested in the prosecution story and maintained that the complainant was assaulted by some unidentified persons in the darkness of night.