VINOD PRASAD, J. - (1.) - Appellants Ashok Kumar Singh A-1, Pratap Singh A-2 both real sibling brothers being sons of Ram Bahadur Singh, Chotkoo Singh A-3, Bharat Singh A-4 both sons of Deep Narain Singh and Lalloo Singh @ Gajendra Singh A-5, have filed the instant appeal against the impugned judgment and order dated 31.7.1982 passed by 1st Additional Session's Judge, Basti in S.T. No. 40 of 1979, State v. Ashok Kumar Singh and others, relating to police station Uska, district Basti. Trial Judge has convicted appellants A-1 and A-2 under section 148 IPC and has imposed sentence of three years R.I. for the said charge. A-1 has been further convicted under section 324 IPC and was imposed sentence of 3 years R.I. for that offence. Rest all the appellants were convicted under section 324/149 IPC and were sentenced to three years R.I. for that offence. Three of the appellants A-3, A-4 and A-5 were convicted under sections 323 and 147 IPC and were sentenced to one year and two years R.I., respectively for those offences. Trial Judge had directed all the sentences to run concurrently. It is this conviction and sentence, which is under challenge in the instant appeal.
(2.) PENDING final disposal of the appeal one of the appellant Pratap Singh A-2 expired and, vide order ? dated 29.1.2010, his appeal has been abated. This has now left this Court to consider the appeal of rest of the four appellants A-1, A-3, A-4 and A-5. Stated briefly, prosecution allegations, as was contained in the written F.I.R. Ext. Ka-1 scribed by informant Rajendra Prasad son of Balli P.W.1, were that the informant was a resident of village Bagahi, police station Uska, district Basti. On the incident dated 31.8.1979 at 11.00 a.m. he was going to the market on a cycle and when he was passing through the granary of A-1, he was stopped and accosted by him as to why he is riding a cycle in his presence. Informant retaliated by informing him that the way was a common passage and thereafter he proceeded for the market where he had purchased some articles. While returning therefrom when PW-1 reached the said granary then A-1 stopped his cycle, gave him two slaps, and thereafter returned his cycle. Informant came to his house where he narrated the incident to his family members. Taking it to be a temerity, Tameshwar, informant's uncle along with his brothers Garib, Kalloo, Dhun- mun went to accused appellants house to lodge a protest regarding the earlier incident, where a verbal onslaught ensued in between them, during course of which, they were threatened. Thereafter Tameshwar and informant's brothers returned back to their house. Same day, at 3.30 p.m., A-1 armed with a spear, A- 5 and A-3 armed with lathi, A-4 armed with whip (hunter) and A-2 armed with a gun raided informant's house. A-3, A- 4 and A-5 started belabouring informant, his uncle Temeshwar and brothers Garib and Kalloo with lathis. Hue and cry raised by the victims, attracted other people on which A-2 instigated and A-1 assaulted Dunmun, informant's brother, with his spear causing him fatal injuries, sustaining which, Dhunmun fell down on, the ground and expired. Informant, his uncle Temeshwar brothers Garib, Kalloo and Ram Nath resident of village Mulhia, police station Lumbani, Smt. Awadhi (informant's mother), Smt. Chinki (informant's sister- in-law), Faagu and many other co- villagers had witnessed the assault. Informant and his brothers, had retaliated by pelting bricks on the accused persons on which the raiders had escaped from the spot. A-2, while fleeing from the incident scene had hurled threats to the informant and his relatives to be annihilated. In the incident informant, his uncle Temeshwar, brothers Kalloo and Garib had sustained lathi injuries. Informant, thereafter, left the corpse of the deceased in the charge of his relatives, scribed Ext. Ka-1, written report, went to the police station Uska Bazar, at a distance of two miles and lodged it the same day at 5.30 p.m. naming all the accused as the malefactors for offences under sections 147, 148, 149, 323, 506 and 302 IPC. Head Constable Ghanshyam Lal registered the crime, prepared Chik FIR and the GD entry Exts. Ka3 and Ka-4. Inspector Nurul Ain P.W.4 prepared chitthi mazroobi (letter for medical examination) Exts. Ka-5 to Ka-8 and then dispatched the injured to the hospital for their medical examinations.
(3.) NURUL Ain P.W.4 had also investigated the offences. He had interrogated the informant at the police station and thereafter, reaching at the spot, in the light of the petromax, had. seized the dead body and had conduced inquest on it from 8:35 to 10:15 p.m. and had prepared inquest memo and other relevant documents, which he had proved as Exts. Ka-9 to Ka-14. Following day I.O. interrogated witnesses Kalloo, Garib, conducted spot inspection and prepared site plan map Exts. Ka-16. He also collected blood stained and plain earth from the incident scene. All these documents have been proved by him as Exts. Ka-15 and Ka-16. Blood stained apparels of the deceased and soil are material Exts. 1, 2 and 3, were also seized by the I.O. P.W.4. Concluding investigation had charge-sheeted the accused vide Exts. Ka-17 on 10.10.1978. Medical examination of all the injured was done by Dr. J.P. Singh vide Exhibits Ka-19 to Ka-22. All the injured were medically examined on 1.9.1978. Rajendra was examined at 7.30 a.m. whereas -Kalloo, Temeshwar and Garib were examined at 11.45 a.m., 11.30 a.m., 12.05 p.m., respectively. Following injuries were detected on the body of these persons: "Ext. Ka-19 Examined Sri Garib aged about 28 years S/o Balli R/o village Bagahi P.S. Uska Bazar district Basti, on 1.9.1978 at 12.5 P.M. M/I- A black mole 3.00 cm lateral to Rt. nipple. B/B- Lalsha Chaukidar of P.S. Uska Bazar. Injuries- (1) Contusion 4 cm x 3 cm, bluish in colour on the back of left scapular region, 14.00 cm below left shoulder joint. Infer- Injury is simple in nature, caused by hard blunt object duration as is about 2 days. Ext. Ka-20 Examined Shri Tameshar aged about 52 years S/o Baderi of Bagahi P.S. Uska bazar, district Basti on 1.9.1978 at 11.30 a.m. M/I- A black mole 3.00 cm below Rt. nipple. B/B- Lalsha Chaukidar of P.S. Uska Bazar. Injuries:- (1) Complaint of pain on the upper and right half of head. (2) Traumatic swelling on the back of half upper arm. No external mark of injury is present 3 cm above left elbow. (3) Complaints of pain on the back of chest, no external mark of injury present, no opinion can be given. (4) Traumatic swelling, red in colour on the left hip joint, in the area of 4 cm x 3 cm, adjacent part is covered by small baubles of boils. infer-All injuries are simple in nature, caused by hard blunt object, duration is about one day. Ext. Ka-21 Examined Shri Kallu aged about 22 years S/o Balli of P.S. Uska Bazar, district Basti on 1.9.1978 at 11.45 A.M. M/I- A black mole 5.00 cm above left nipple. B/B Lalsha Chaukidar of P.S. Uska Bazar. Injuries-(1) Swelling with blackish contused abrasion on the front and left forearm in the area of 5 cm x 4 cm with infected abrasion .5 cm below left elbow joint. Infer- Injury is simple in nature, caused by Miction and infection of injury duration as is about 3-4 days. Ext. Ka-22 Examined Shri Rajendra S/o Balli aged about 20 years of village Bagahi, P.S. Uska Bazar, district Basti on 1.9.1978 at 7.30 A.M. M.I.- A black mole on Rt. collar bone 12.5 cm above Rt. nipple. B/B- Pheka Rai Cont. No. 87 CP. of P.S. Uska Bazar. Injuries- (1) Complaint of pain on the back of chest. No mark present, No opinion can be given." ;