G. D. Dube, J. - (1.) THIS is an appeal against the judgment an order of Seventh Additional Sessions Judge, Gorakhpur who had convicted and sentenced each of the appellant Pahalwan Singh, Tikori, Dhautal and Dudhai alias Dudh Nath to two years R.I. under section 148, IPC, imprisonment for life under section 302 read with section 149, IPC and one year R. I. under section 323, read with section 149, IPC. Ali the sentences were directed to run concurrently.
(2.) THE prosecution had alleged that Pheku Singh resident of village Kaleshar (Southern hamlet), P. S- Sahjanwa district Gorakhpur had enmity with the appellant Pahalwan Singh, Dhautal Yadav etc. resident of Northern hamlet of the said village. As against the excesses of the aforesaid persons (appellants) Devi Saran deceased used to raise voice, consequently they nurtured ill-will against him. At about 3.30 p.m. on 29-9-76 Devi Saran, Poojan, Phenku Singh and Ram Kawal were going to Piprauli Bazar for marketing. When they reached near the field of Ram Surat s/o Balebhadra, Pahalwan Singh, Tikori Singh, Dhautal, Dudhai, Ram Lal, Jhamman, Ramman, Nanhook, Ramdas and Shrawan suddenly came out from a sugercane field. Out of them Pahalwan Singh, Tikori Singh, Dhautal and Dubhai had spears and rest had Lathis in their hand. THE appellants and their companion rushed towards deceased and his companions challenging him. When Devi Saran and his companions fled towards their village the appellants and their companion overpowered Devi Saran and started assaulting him with their weapons. Poojan and Ram Kawal were able to escape while defending themselves. Seeing Devi Saran being assaulted Smt. Kailasi widow of Jhankari tried to save him. THE assailants removed her by holding her hair and kicking her away by giving a blow with leg on her chest. On the alarm the witnesses Tribhuwan Singh, Sudama Singh, Ram Pyare Singh arrived and saw the occurrence. On account of injuries Devi Saran died at the spot. After the occurrence Phenku Singh scribed a report Ext. ka 1 and went to the Police Station and lodged the report at 4.45 p.m. same day. The investigation was taken up by Narendra Pratap Narain Singh, PW 9 Sub- Inspector of Police Station. He had received the papers of the case in the town of Sahjanwa. He proceeded to the place of occurrence and prepared inquest report. He had sent the dead body along with police papers to the mortuary for post mortem. He interrogated the maker of the report Phenku Singh and sent the injured to the hospital for medical examination. He prepared site plan Ext. Ka 12. Same day investigation was taken up by Harmurti Singh, Station Officer of Police Station Sahjanwan. He interrogated the witnesses and submitted the charge sheet against the appellants and others. The prosecution examined thirteen witnesses in all. Out of them, Pheku (PW 2), Ram Kewal (PW 3) Tribhuwan (PW 4), Ram Pyare (PW 5) and Jagdish Singh (PW 6) are eye witnesses. Dr. K. K. Mall (PW 1) had conducted the post mortem of the dead body at 3 00 p.m. on 30-9-1976 when the dead body had been presented before him by Abdul Hameed Constable (PW 7) and one other. The other witnesses, namely, Parmatma Singh, Head Moharrir (PW 8), Viveka Nand Singh (PW 10), Budhai, Clerk of the Chief Medical Officer's Office (PW 12) and Brij Behari Singh Constable (PW 13), who carried blood stained material to the office of the Chemical Examiner and Malkhana Moharrir (PW 11) are formal witnesses. Pratap Narain Singh (PW 9) is the first Investigating Officer and Hari Moorti Singh (PW 14) is the last Investigating Officer.
(3.) ON examination of the dead body, Dr. Mall had found that the deceased was about sixty five years old. He had the following ante-mortem injuries on his person :- (1) Stabbed wound 1/2" x 1/2" x going deep inside thorasic cavity deep on left side chest 1/2" medial to the left nipple. (2) Stabbed wound 1" x 1/4" x bone deep on the left side back upper part 1/2" medial to the left shoulder. (3) Stabbed wound 1 1/2" x 1/4" x muscle deep on the outer and middle part of left upper arm. (4) Stabbed wound 1" x 1/2" x muscle deep on the outer and middle part of left upper arm 3" medial to injury No. 3. In thorasic cavity, there was half lbs. of clotted blood. The lung had penetrating wound 1/2" x 1/2" through and through on the left lung lower lobe. The stomach and small intestine were empty. The large intestine was full. The doctor had recovered only one Dhoti and one Gamchha from the pead-body. He had opined that the death was caused due to (ante mortem injuries causing shock and haemorrhage. ';