RANDHIR SINGH, J. - (1.) THIS is an appeal on behalf of Gaya Prasad, Ram Sundar, Ram Ratan and Sheo Shankar, who have been convicted by the Additional Sessions Judge of Partabgarh and have been sentenced to seven years' rigorous imprisonment under Section 307 and to one year's rigorous imprisonment under Section 323, Penal Code.
(2.) THE case for the prosecution was that there was long standing enmity between the appellants on one side and Rameshwar and his son Bindeshwari on the other side so much so that the appellants and Rameshwar had ceased to be on speaking terms. Ultimately a complaint was filed by Ram Ratan and Gaya Prasad against Rameshwar in the Court of a Magistrate in Partapgarh. 11.4.1951 was fixed for the hearing of this case at Partabgarh. The parties are residents of a place about 22 miles away from Partabgarh, and there was a lorry service which touched Derwar bazar and persons of the village, to which the. parties belonged, used to catch the lorry plying between Derwa bazar and Parbtagarh at Derwa which was at a distance of two miles from the place where the parties resided. Mangla Prasad, son of Rameshwar, was sent early in the morning of the 11th of April by Rameshwar to Derwa bazar to arrange for seats for them for Partabgarh. At about 7 a. m. Bindeshwari and his father Rameshwar were going to the lorry stand and on the way passed in front of the house of Gaya Prasad. When Bindeshwari arrived near the house of Gaya Prasad, it was alleged by the prosecution, that the appellants and two others, who have been acquitted by the Sessions Judge, came out of the house of Gaya Prasad and started beating Bindeshwari. One of them was armed with a spear and the others had lathis in their hands. Rameshwar, who was some 50 paces behind Bindeshwari, ran up to the rescue of Bindeshwari on seeing the assault. He was also assaulted by the appellants and their two companions with spear and lathis. Rameshwar fell down and the assailants continued to strike him even after he had fallen down. It is also alleged that the assailants shouted that he should be killed. An alarm was raised by Bindeshwari and Rameshwar and some persons who were near about ran up when the assailants left the place. Rameshwar was taken on an ekka to the police station Jethwar which was at a distance of four or five miles from the place of occurrence. A report was lodged by him at 8. 45 a. m. The details of the incident were mentioned in the first information report and the names of eight persons were mentioned as witnesses besides others who were not named. Investigation was taken up by the police and the Sub Inspector visited the place of occurrence. Ultimately six persons, including the four appellants, were sent up for trial.
(3.) THE defence of the appellants was that Rameshwar and Bindeshwari had been assaulted by some unknown persons at a distance from the house of Gaya Prasad and that as the assailants could not be known, Rameshwar implicated the appellants on account of enmity. The Sessions Judge found the case established against the appellants and convicted them as mentioned above. He entertained reasonable doubt about the complicity of two of the six accused and acquitted them. The appellants have now come up in appeal. The prosecution examined Rameshwar and Bindeshwari, the two persons who had received injuries. The injuries of Rameshwar and Bindeshwari had been examined by the Civil Surgeon when these persons were taken to the hospital. He found a number of injuries on the person of Bindeshwari. He had a contused wound on the top of his head 5"x -"x bone deep and a set of six contused wounds on the left side of the head. There were two contused wounds on the right leg and two contused wounds on the left arm. Besides these contused wounds there were a number of contusions on the arms and back. The Civil Surgeon has noted the number of these injuries as 11, but it appears that the injuries were more numerous as he has shown six wounds as one injury and five contusions on the right side of the back also as one injury. Rameshwar had an incised wound bone deep on the right side of the forehead half an inch above the right eye -brow and another incised wound on the left side of the nose and upper lip. There was a contusion with fracture of both bones of the forearm and two contusions with swelling and with fractures of the left leg and foot. There were three contused wounds also on the left leg besides some marks of contusions and two abrasions. Two of the injuries on the person of Rameshwar were found to be grievous and the incised wound had been caused by some sharp -edged weapon. The Civil Surgeon also noticed tenderness and rigidity with pain on palpitation over left side of the abdomen which was indicative of the fact that there had been injury caused to the internal organs also. The right pulse was found to be weak and the injured was in a condition of shock. The respiration at the time of the examination was hurried and shallow and the general condition of Rameshwar was serious. The Civil Surgeon had been examined to prove the injuries received by these two persons. Besides Rameshwar and Bindeshwari, some other witnesses were also examined in this case. Wali Mohammad who stated that he had gone near the place of occurrence to roll his camel supported the version given by Rameshwar and Bindeshwari. His evidence has been criticised by the learned counsel for the appellants on the ground that the statement given by him before the Committing Magistrate was different from the statement given by him before the Sessions Judge. Wali Mohammad had stated in the Court of the Committing Magistrate that he had gone with his camel to get it loaded while in the Court of the Sessions Judge he stated that he had gone to graze his camel and to allow it to roll on the ground. Wali Mohammad was confronted with his earlier statement and he stated that the word used by him in the Court of the Committing Magistrate was "lotana" and not "ladana". This mistake is possible, and the explanation given by Wali Mohammad cannot be rejected as wholly fantastic or incorrect. There was no particular purpose in giving a different version on this point which was wholly immaterial for the purposes of this case in the Court of the Sessions Judge. There is, therefore, no ground to reject the evidence of Wali Mohammad because of this discrepancy. It has also been argued that Wall Mohammad did not reside very close to the place of occurrence and had therefore no valid reason to be there at the time of the occurrence. The story given by Wali Mohammad that he had gone with his camel is not improbable or unusual and his testimony which has been accepted by the Sessions Judge, should not be rejected on this ground also.;