- (1.) THE six appellants in this Appeal stood trial in Session Trial No.167 of 1980 and vide judgment dated 10.8.1982 all the appellants were convicted with separate sentences that have been awarded for offences under Section 147/148/149/324 & 325 IPC for different periods without imposing any fine or any other alternative sentences. The said judgment dated 10.8.1982 is under Appeal. It is on record that the appellant No.3 ­ Chhedi and appellant No.5 ­ Balmiki died during the pendency of the appeal, therefore, the appeal against them stood abated.
(2.) SRI V.P. Srivastava, learned Senior Counsel, assisted by Sri S.K. Dwivedi has been heard on behalf of the appellants and Sri Mahendra Bahadur Singh and Sri Sageer Ahmad for the State. The incident is of 28.3.1978 and the First Information Report narrates that the injured Jokhu Lal Pathak, while he was harvesting his crop of Gram in his agricultural holding along with his son and his brother-in-law Ram Dular, the appellants, who bore an old enmity due to village party politics and a previous incident, arrived at the scene of occurrence fully armed and with a common intention, exhorted to assault the injured with an intention to kill. The F.I.R. narrates that the appellant No.1 ­ Brahmdeo Yadav was armed with a "Pharsa", which is a sharp edged long weapon, Jai Narain ­ the appellant No.2 was also armed with a similar weapon and one other accused who is not the appellant namely Rajendra was carrying a spear with him. The other named in the F.I.R. and the appellants before this Court namely Chhedi, Ramdev, Balmiki and Muneshwar were armed with Lathis (Stick). It is alleged that all of them simultaneously assaulted the injured and the informant. They sustained injuries from the said weapons and both hands of Jokhu were broken. The injured in this state were rushed on a Jeep accompanied by his brother-in-law Ram Dular to Deoria, District Sadar Hospital, where Jokhu was medically examined and the F.I.R. was lodged on the same day naming 7 accused including Rajendra, who is not the appellant before this Court. The recovery of blood-stained mud was made on the next day and a memo was prepared together with a separate memo in relation to the blood-stained clothes which is also an exhibit on record. The medical examination that was conducted at 1.35 P.M. on the date of the incident itself records 9 injuries on the person of Jokhu Lal Pathak. The injuries are as follows:- "(1) Lacerated wound 1/4" x 1/10" x scalp deep on left side head 3" above the left ear pinna. (2) I.W. 1/4" x 1/10" x skin deep on the left upper arm linear third outer aspect. (3) I.W. 1/4" x 1/10" x skin deep on the left upper arm outer aspect 1" above the injury No. (3) U.O. Contused swelling 10" x around the lower third of left upper arm, covering left elbow back and upper 2/3rd of left fore-arm- underlying left humorous bone is fractured at its lower third shaft and left forearm line are fractured clinically. (4) U.O. I.W. Two each measuring 1/4" x 1/10" x muscle deep lying 1/2" apart on the Rt. Upper arm lower third- outer aspect 1/4" above Rt. Elbow with contused swelling 6" x around the lower two third of Rt. Upper arm covering Rt. elbow under lying Rt. Humorous bone fractured middle. (5) Multiple contusion over lapping each in area of 6-1/2" x 4" on the left buttock outer aspect. (6) I.W. 1" x 1/2" x bone upper part skin libia 1" below left knee joint. (7) I.W. 1" x 1/4" x muscle left leg inner aspect lever third part 1-1/2" above left ankle. (8) Contusion 5" x 1" on the back of chest middle oblique in direction extending both side of Thoracic spine. (9) Contused swelling with abdomen 1-1/2" x 1" on the Rt. Leg lower third outer aspect." There are, thus, 5 incised wounds and 3 injuries of contusion. The medical opinion records that injury Nos. 3 and 4 were kept under observation and X-Ray was advised. Thereafter, charges were framed against all the 7 accused under Section 307 read with Section 149 IPC vide order dated 20.10.1981 and the trial proceeded. The statement of the injured Jokhu Lal Pathak was recorded as PW-1, the statement of PW-2 Shri Niwas Pathak, his son and the statement of one family relative Ram Nagina Pathak was recorded as PW-3. The Investigating Officer ­ Bhim Rao, Sub-Inspector of Police also entered into the witness-box as PW-4 and Dr. M.S. Alam, a Medical Officer, who carried out the medical examination and prepared the report, entered the witness-box as PW-5. The X-Ray Technician of the Hospital Kunj Bihari Singh entered the witness-box as PW-6 and Gopalji Chaubey another police official to support the transcribing of the F.I.R. entered the witness-box as PW-7.
(3.) ALL the 7 accused were examined under Section 313 Cr.P.C. and Dr. Farooq entered the witness-box on behalf of the defence as DW-1. This Doctor had issued a Medical Certificate in favour of the appellant No.1 ­ Brahmdeo Yadav certifying that he was under his treatment between 23.3.1978 and 1.4.1978 for some breathing problem. After the evidence closed, the trial court proceeded to examine the same and ultimately convicted 6 of the accused except Rajendra, who was acquitted giving him the benefit of doubt. This is how the present appellants are before this Court in Appeal. Learned counsel has taken the Court through the statement of the witnesses of the prosecution as well as of the defence in extenso and it has been urged that the appellants were falsely implicated and there is a exaggeration in number of the accused. The extent of the cut injuries has been explained by Sri V.P. Srivastava to urge that none of them have been caused by a sharp edged weapon like a Pharsa and the cause of the incised injuries do not stand corroborated with the allegations as suggested by the prosecution. He further contends that Pharsa is alleged to have been in the hands of the appellant Nos. 1 and 2 and the other 4 accused are said to have been armed with Lathis. Sri Srivastava, therefore, submits that there is no individual role assigned to any of the appellants and there is no evidence to indicate or nominate each individual in respect of the injury caused.;