- (1.) THE present appeal was preferred by 7 appellants who had been put on trial by the learned III Additional Sessions Judge, Mirzapur by being charged together under sections 147, 323/149 and 302/149 I.P.C. THE appellants were held guilty of committing offences they had been charged with and each of them was directed to suffer rigorous imprisonment for one year under section 147 I.P.C., six months under section 323/149 I.P.C. and also for life under section 302/149 I.P.C. During the pendency of present appeal, appellant no. 1 Jokhai, appellant No.3 Nachakau, appellant no.5 Kinka and appellant no.6 Sadhu were reported dead as such their appeals abated by orders passed on different dates, leaving the present appeal against three surviving appellants, i.e., appellant no. 2 Chaitu, appellant no. 4 Kishana and appellant no. 7 Dhorha.
(2.) THE prosecution case is contained in Ex.Ka-1, the written report of PW-1 Gomti, who happened to be the uncle of the deceased Rajmani alias Bihari. It was stated by the informant that on 1-2-1980 at about 8:00 in the night he and the deceased were irrigating their field, when deceased appellant Jokhai came and told PW-1 that he will take water into his own field. On this issue there was some altercation between the parties as also some scuffle between them which ended by the intervention of Vishwanath, PW-2 and Sikandar PW-3, who separated the two fighting persons, i.e., PW-1 and the deceased appellant Jokhai. It was stated by PW-1 that, he thereafter, alongwith the deceased nephew Rajmani son of Girja Prasad became engaged again in irrigating their fields. However, deceased appellant Jokhai went to his house to come back again to the field alongwith remaining appellants and started assaulting the informant PW-1 and the deceased, his nephew with lathi-danda, legs and fists. It was specifically alleged that the appellant Chaitu gave lathi blows to Rajmani as a result of which he fell down whereupon the deceased appellant Kinka mounted upon his chest and started assaulting him with legs while others continued giving blows with lathi, legs and fists. It was stated that the same set of persons, i.e., PW-1 Gomti, PW-2 Vishwanath and PW-3 Sikandar, intervened into it alongwith Hinchh Narayan, Jagannath and Surajbali (all not examined) and due to their intervention accused persons went away to their house. THE informant stated that Rajmani became unconscious and because, it was night the deceased could not be brought to the police station for lodging report and while he was being brought to the police station he died on the way, as such the dead body had been brought to the police station to file a written report. On the basis of Ex. Ka-1, first information report of the case Ex.Ka-5 was drawn up by constable Moharrir, Lal Bahadur Singh at the orders of PW-6 in his presence and he took up investigation of the case. PW-6 observed the body of PW-1 Gomti and recorded the injuries by dictating it to constable clerk posted in the police station and that record has been brought Ex.K-6. He, at the same time, issued requisition for examining PW-1 and sent the same alongwith injured PW-1 to the hospital. The requisition issued to the doctor for examining PW-1 has been marked Ex. Ka-7. Pw-6, thereafter, recorded the statement of Pw-1 and the other witnesses, like, Vishwanath Pw-2 and Sikandar Pw-3 and others who had accompanied Pw-1 and held inquest upon the dead body by preparing inquest report Ex. Ka-9. He prepared the sketch of the dead body as also challan Ex. Ka-13 and Ka-14 respectively and dispatched the dead body for post mortem examination to Pw-5 Dr. V.J. Khanna. He also inspected the place of occurrence and prepared a sketch map Ex.Ka-15. During that course, he found blood stains at the place of occurrence and obtained the sample of the same by sealing it by preparing seizure memo Ex.Ka-16. Pw-6, the investigating officer, looked into the documents, relating to the land which was being irrigated by the informant and the deceased, which was lying in the custody of the record keeper of the revenue department and obtained the maps of field Exts., Ka-1 and Ka-18 from him by getting it prepared in his presence. He again came back to the village where the offence had taken place and seized the blood stained clothes which were worn by Pw-1, informant and it was marked during examination of Pw-5 material Exts. 4 and 5. Pw-6 further stated that he also obtained the clothes which were on the dead body at the time of holding of inquest by him and those were sent to him by the Chief Medical Officer and those clothes were marked material as Exts. Ka-6 and Ka.9. The Chief Medical Officer had also sent to P.W.-6 with the constables who had accompanied the dead body, the post mortem report. The blood stained earth and the blood stained clothes were separately sent to the chemical analyst for analysis report. After finding materials sufficient Pw-6 sent the accused persons who were convicted by the learned trial court, for their trial.
(3.) THE defence of the appellant was that in fact the appellant Jokhai had been assaulted by the informant and the deceased on 1-2-1980 and for that the appellant Jokhai has lodged a report at the same police station half and hour prior to lodging of the report by PW-1. It was suggested to PW-1 that infact when appellant Jokhai was attempting to divert water into his own field for irrigation it was obstructed by the deceased and the informant by blocking the flow of water. It was further suggested that the appellant Jokhai removed the obstruction, whereafter the informant and the deceased started assaulting him and in defence of his person, appellant Jokhai wielded blows with lathi. This suggestion was given to PW-1 in paragraphs 74 and 75 which appears at page 55 of the paper book. Thus, it was admitted that appellant Jokhai had wielded lathi blows both on the informant and the deceased. During course of trial, the prosecution examined as many as six witnesses. P.W.1 Gomti was the informant and was also injured on account of receiving blows with lathi as may appear from the evidence of the Dr. Mohd. Tauhid PW-4 who found the following injuries on the body of PW-1 on 2-2-1980 at 8.45 a.m. :- (1) Superficial injury in the form of abrasion 1.5 cm x 2 cm in the left upper arm, anteriorly, 8 cm away from the lateral end of the clavicle. Tenderness and signs of inflammation were present. Similar injury was present in the same upper arm in the middle measuring 2 cm x 3 cm laterally. (2) There was blackening of the nail of left ring finger with mark of clotted blood at the margin of the nail. Tenderness and inflammation signs were present. (3) Transverse linear skin deep injury of 2.5 cm x cm with blood clot and all signs of inflamation on the dorsal surface of the junction of the first and middle phalanx of the right ring finger. Dried blood was noted by PW-4 in the palm of PW-1. (4) Superficial abrasion of 1.5 cm x 2 cm, 5 cm above the hyloid (sic) process of ulna dorsally in the right forearm. (5) Tenderness in the left thigh in the upper part at the bony protuberance posteriorly with sign of inflammation. (6) Transverse linear skin deep injury of 4 cm x ? cm with haircaught in the wound with dried blood clot in front of head, 6.5 cm above the right eye-brow. There was injury 1.5 cm x 2 cm superficial tender on the middle of the head 2 cm left to the mid line. Dried blood clot was also found over the injury by PW-4. (8) Pain and tenderness on the right side of the neck without signs of inflammation with two scratch mark was also present. PW-4 issued Ex. Ka-3, his report after examining PW-1 and he was further of the opinion that all the injuries were simple in nature which were caused by hard and blunt substance within 24 hours of his examination of PW-1.;