- (1.) VISHNU Sahai, J. Through this appeal the 11 appellants namely Kali Charan, Ram Charan, Keshri, Jasi, Nanhkoo, Mangroo, Salik, Gurudin, Rampher, Baboo and Jairam Challenge the judgment and order dated 7-10-1980 passed by the II Additional Sessions Judge, Sultanpur in Sessions Trial No. 163 of 1979, whereby they have been convicted and sentenced in the manner stated hereinafter: (i) Under Section 304/149 I. P. C. to imprisonment for life. (ii) Under Section 324/149 I. P. C. to two years R. I. (iii) Under Section 323/149 I. P. C. to six months R. I. In addition appellants Nanhkoo and Jai Ram have been convicted for the offence punishable under Section 148 I. P. C and sentenced to two years R. I. and the remaining appellants under Section 147 I. P. C. to one year's R. I. The Substantive sentences of the appellants have been ordered to run concurrently. It is pertinent to mention that during the pendency of the appeal appellant Shriram died and consequently vide an order dated 11-10-1996 passed by a Division Bench of this Court comprising of D. K. Trivedi and I. M. Quddusi JJ. the appeal preferred by him was directed to abate.
(2.) SHORTLY stated the prosecution case runs as under: At the time of the incident the informant, the deceased, witnesses Darshan, Panchu, Pancham, Ludur, Lutawan, Jasi and Bhukhali and appellants Kali Charan, Ram Charan, Keshri and Shriram were living in village Rampur, within the limits of Police Station Gosainganj, in District Sultanpur. At the time appellants Jasi, Nanhkoo, Mangroo, Salik, Gurudin, Rampher, Baboo and Jairam were living in village Mojapur hamlet of Barosa, which was situated contiguous to village Rampur. On 21-3-1978 at about 4 p. m. when the informant's sister-in-law (wife of deceased Chhitanoo) was coming alongwith her pigs in the backyard of appellant Kali Charan appellants Kali Charan and Ram Charan abused her. An altercation ensued between the said appellants and informant's sister-in-law. She later came home alongwith pigs. An hour later i. e. at 5 p. m. the same evening appellants Nanhkoo and Jai Ram armed with ballam and the remaining 10 appellants namely Kali Charan Ram Charan, Keshri, Shriram, Jasi, Mangroo, Salik, Gurudin, Rampher and Baboo armed with lathies came to the door of the deceased Chhitanoo. At that time Chhitanoo was ill and was lying at his door. The appellants started assaulting him. Hearing the cries of Chhitanoo and his wife, the informant, Bhukhali P. W. 3, Duma @ Dumman P. W. 4, Lutawan P. W. 5, Panchu, Pancham and Ludur and some others rushed to the place of the incident and intervened. Some of them also suffered injuries. At the time of leaving, the appellants damaged the house of Chhitanoo causing damage of Rs. 50/- to him. After the appellants had run away the informant Bansi alongwith the injured proceeded to Police Station Gosainganj the same day, where he lodged his First Information Report at 7 p. m. It is pertinent to mention that the distance between the place of incident and police station Gosainganj, was 4 miles. The injuries of the victims Panchu, Dumma, Pancham, Chhitanoo, Ludur and Bansi were medically examined on the date of the incident itself i. e. , on 21-3-1978 at 9. 45 p. m. , 10 p. m. , 10. 10 p. m. , 10. 20 p. m. 10. 30 p. m. and 10. 45 p. m. respectively at the District Hospital Sultanpur by Dr. K. N. Singh P. W. 1. On the person of Panchoo doctor found the following injuries: (i) non scabbed fresh abrasions in area of 5 cm. x 4 cm. on the front of the middle part of the right fore arm. In the opinion of the doctor the said injury was simple and caused by friction. On the person of Dumma @ Dumman the doctor found the following injuries: (i) Traumatic swelling 7 cm. x circumference on right fore arm just above the wrist. (ii) Abrasion Fresh and non scabbed 2. 5 cm. x 1 cm. on the front of the left fore arm just above the wrist. In respect of injury No. 1 the doctor advised X-ray and injury No. 2 was simple. On the person of Pancham the doctor found the following injuries: (i) Punctured wound 0. 5 cm. x 0. 2 cm x. 8 cm on the back of the left fore arm 8 cm. below the elbow. Fresh bleeding is present. Shape is spindle shape. Margins are clean cut. In the opinion of the doctor the injuries were simple and caused by shape pointed object. On the person of Chhitanoo the doctor found the following injuries: (i) Traumatic swelling 3 cm. x 3 cm. on the right temporal region. Fresh bleeding from the right ear is present. (ii) Incised wound 1 cm. x 0. 3 cm. x skin deep on the back of the right fore arm. Fresh bleeding is present and there is diffuse swelling around the wound. Margins are clean cut and the shape is spindle. In respect of injury No. 1 the doctor advised X-ray and injury No. 2 was simple. On the person of Ludur the doctor found the following injuries:- (i) Lacerated wound 4 cm. x 0. 5 cm. x scalp deep on the left side of the head, 7 cm. above the ear. Fresh bleeding is present. (ii) Punctured wound 1 cm. x 0. 5 cm. x muscles deep on the back of the right fore arm, 3 cm. below the elbow. Margins are clean cut. (iii) Red contusion 10 cm. x 3 cm. on the back on right side in lower part. (iv) Abrasion 2 cm. x 1 cm on the left back just below the angle of the scapula fresh and non scabbed. In the opinion of the doctor injury No. (ii) was caused by sharp pointed object; injury Nos. (i) and (iii) were caused by blunt object; and injury No. (iv) was a result of friction. On the person of Bansi the doctor did not find any external injury but noted that he complained the pain. In his examination in chief Dr. K. N. Singh stated that the injures of the aforesaid victims could have been caused on 21-3- 1978 at 5 p. m. The evidence of Dr. Surendra Verma P. W. 6 shows that on 26-3- 1978 at 2. 45 p. m. Chhitanoo succumbed to his injuries and the next day at 11 a. m. he performed the autopsy on his corpse and found on it following ante-mortem injuries: (1) Traumatic swelling 4 cm. x 3 cm. right temporal region skull deep clotted blood present in the right ear. (2) Partially healed wound with scab covering the wound, size of the wound being 1 cm x 0. 3 cm. x 0. 1 cm on the back of the right fore-arm 10 cm. above the wrist. As the healing had progressed to a great extent the margin of the wound is not clear. (3) Abrasion 1. 5 cm. x 1 cm. back of right fore-arm on the ulner aspect 4 cm. above breast. The abrasion was covered with a thin scab. Fracture of ulna-bone detected under the injury. On internal examination Dr. Verma found fissured fractures of right temporal bone and right parietal bone and also fracture of right side of middle cranial fossa. In the opinion of Dr. Verma the deceased died on account of ante- mortem injury No. 1 suffered by him and the said injury was sufficient in ordinary course of nature to cause the death.
(3.) THE case was investigated in the usual manner by S. I. B. D. Singh P. W. 7 who after completing the investigation submitted the charge-sheet against the appellants. The case was committed to the Court of Sessions in usual manner, where the appellants were charged for offences punishable under Sections 304, 149,324, 149, 323, 149, 148 and 147 I. P. C. They pleaded not guilty to the charges and claimed to be tried. During trial the prosecution in all examined seven witnesses. Four of them namely Bansi Bhukhali, Duinma and Lutawan P. Ws. 2, 3, 4 and 5 respectively were examined as eye witnesses. The learned trial Judge believed the evidence furnished by the said witnesses and convicted the appellants in the manner stated above.;