- (1.) VISHNU Sahai, J. Six persons namely, Gautam, Onkar, Ramchandra, Ram Adhare, Ghurpatri and Harihar were charged by the IV Additional Sessions Judge, Basti, in Sessions' Trial No. 400 of 1978, for the offence punishable under Section 323 read with 149 I. P. C. In addition: Gautam was charged for the offence punishable under Sections 302 I. P. C. and 148 I. P. C. and Onkar, Ramchandra, Ram Adhare, Ghurpatri and Harihar for that punishable under Sections 302 read with 149 I. P. C. and 147 I. P. C. Vide judgment and order dated 21-12-1981, the learned Judge convicted and sentenced them in the manner stated hereinafter: Gautam: (i) Under Section 302 I. P. C. to imprisonment for life; (ii) Under Section 323 I. P. C. read with 149 I. P. C. to six months' R. I. ; and (iii) Under Section 148 I. P. C. to six months' R. I. Onkar, Ram Chandra, Ram Adhare, Ghurpatri Pandey and Harihar: (i) Under Section 302 I. P. C. read with 149 I. P. C. to imprisonment for life; (ii) Under Section 323/149 I. P. C. to six months' R. I. ; and (iii) Under Section 147 I. P. C. to undergo six months' R. I. The sentences of the aforesaid six persons on all the counts were directed to run concurrently.
(2.) AGGRIEVED by their convictions and sentences Gautam, Onkar, Ramchandra, Ram Adhare, Ghurpatri Pandey and Harihar have preferred the present appeal. Shortly stated, the prosecution case runs as under: The informant Virendra Prasad Pandey, P. W. 1 is the son of deceased Badri Prasad. At the time of the incident, the informant, deceased Badri Prasad, Dubri Nau P. W. 2, Ram Das P. W. 3 and Mahendra Nath Pandey P. W. 4 were residing in village Naghara within the limits of Police Station Ghanghata, District Basti. At the said time, the six appellants namely, Gautam, Onkar, Ramchandra, Ram Adhare, Ghurpatri and Harihar were residing in Village Baridiha within the limits of Police Station Ghanghata, District Basti. Appellants Ram Chandra and Onkar are the sons of appellant Gautam. Appellant Ghurpatri is the son of appellant Harihar. Appellant Harihar, Ram Adhare and Gautam are said to be friends. There was enmity between appellant Gautam and the deceased Badri Prasad. Gautam wanted the deceased Badri Prasad to give false evidence against Mahendra Nath Pandey P. W. 4 in a case of dacoity instituted upon a complaint, but the deceased had declined. This irked Gautam. During the course of the distribution of land Dubri Nau P. W. 2 got some land belonging to the Gram Samaj, which was situated by the side of the chak of appellant Gautam. Dubri had sown wheat in the aforesaid land. On the date of the incident i. e. on 28-3-1978. Duburi had harvested the wheat grown in the chak situated by the side of the appellant Gautam's land and brought it to his house. On the said date at about 12 noon Gautam alongwith his sons Onkar and Ramchandra and Ram Adhare, Ghurpatri Pandey and Harihar came at the door of Dubri and started abusing him. The deceased Badri, who was passing by in front of Dubri's house came and asked Gautam and others not to abuse Badri. An exchange of abuses took place between both the sides. In the meantime, appellant Harihar instigated that Badri be killed. Thereupon, Gautam inflicted a spear blow on Badri's chest. Hearing the cries of Dubri, the informant, Ram Das P. W. 3, Mahendra Nath P. W. 4, Parmatma and some others came. Thereafter, appellants other than Gautam assaulted Mahendra Nath Pandey and Parmatma with lathis and bricks. In order to save themselves, Mahendra Nath Pandey and others hurled bricks resulting in appellants Gautam and Harihar sustaining injuries. Thereafter, the appellants ran away. As a consequence of the assault Badri fell down dead. Thereafter, the informant scribed the F. I. R. of the incident and alongwith Mahendranath Pandey and Parmatma proceeded to Police Station Ghanghata, District Basti, where he lodged it. The evidence of Sajiwan Shukla P. W. 6 shows that on 28-3-1978, he was posted as Station-Officer-in- charge of Police Station Ghanghata. On the said date at 2. 15 p. m. , Constable-Moharrir Om Prakash Shukla, with whose writing and signatures he was familiar and whom he had seen writing and signing registered a case on the basis of the F. I. R. lodged by Virendra Prasad Pandey P. W. 1. It is pertinent to mention that in the said F. I. R. , the six appellants are named and on its basis a case under Sections 147/148/336/307/302/324/323/149 I. P. C. was registered against them. A perusal of the chik-F. I. R. shows that the distance between the place of the incident and the Police Station was ten miles.
(3.) THE evidence of S. O. Ram Sajiwan Shukla P. W. 6 further shows : After the F. I. R. was lodged, he recorded the statements of Mahendra Nath Pandey and Pramatma at the Police Station itself and sent them for medical examination. At about 5 p. m. , he left for the place of incident. He seized the corpse of the deceased and performed the inquest on it and prepared photo-lash and challan-lash etc. He prepared the site-plan (Ext. Ka 14 ). From the place of the incident he seized plain and blood stained earth and pieces of bricks under recovery memos. In front of the house of Badri he found a stack of harvested wheat. He searched for the appellants, but they could not be found. THE same day, he recorded the statement of the informant. After his transfer, the investigation was taken over by S. I. Ram Achhibar Mishra, who after its completion submitted the charge-sheet against the appellants. Going backwards, the injuries of Parmatma and Mahendra Nath were medically examined on 23-8- 1978, at 5. 00 p. m. and 5. 15 p. m. respectively, by Dr. V. N. Singh P. W. 8 who found on the person of the former the following injuries: (i) Lacerated wound 6 cm x 0. 5 cm x skin deep present on the posterior part of right ear just behind the root of upper part of right ear. (ii) Abrasion 2 cm x 11 cm present on the upper part of right shoulder 3 cm behind lateral end of right clavicle. (iii) Abrasion 2 cm x 1 cm present on the right side of back 7 cm below the anterior angle of right scapula. On the person of Mahendra Nath, Dr. Singh found a lacerated wound 6 cm x 0. 5 cm x bone deep on the mandibular end of right forehead just on and above the medial end of right eye brow. In the opinion of Dr. Singh, the injuries of the said persons were simple in nature; attributable to hard and blunt object; and afresh.;