M.C.JAIN,J. - (1.) THIS appeal is directed against judgments and order dated 9 -6 -1980 passed by Sri S.S. Gupta, the then IV Additional Sessions Judge, Varanasi in S.T. No. 89 of 1979. Four appellants, namely, Banwari, Shiv Dhari, Shiv Nath and Prem Narain alias Prema (real brothers) preferred this appeal. Banwari has been convicted under Section 302 IPC and sentenced to life imprisonment. The remaining three have been convicted under Section 302 IPC read with Section 34 IPC and sentenced to life imprisonment. All of the four have further been convicted under Section 323 IPC read with Section 34 IPC and sentenced to six months' rigorous imprisonment, under Section 324 IPC read with Section 34 IPC with sentence of 1 -1/2 years' rigorous imprisonment and under Section 325 IPC read with Section 34 IPC with sentence of three years' rigorous imprisonment. All the sentences have been ordered to run concurrently.
(2.) THE appellants No. 2 and 3 Shiv Dhari and Shiv Nath have died and the appeal has abated so far as they are concerned. Broad features of the prosecution case may be noted. the complainant Barrister PW 1 and all the accused -appellant are resident of the same village. The deceased Tej Vansh alias Rengai was the real brother of the complainant barrister and Ram Raj Tewari PW 4 is his real uncle. The house of the accused -appellant is situated in the north of the house of the complainant. The appellants were on inimical terms with the members of the family of the complainant because the latter had socially bycotted the former though both the sides were Pattidars. The reasons was that their mother was Ahir by caste. Three days before the incident, the complaint Barrister was invited in a feast along with 10 -12 Brahmins of his Jajman Mangaru. However, in that feast, he had not invited the appellants, and as such they became increasingly annoyed and angry. The present incident was the sequel of this background. On 23 -4 -1978 at about 9 p.m. the accused -appellants Banwari and Shiv Nath armed with spears and remaining two armed with lathi raided the house of the complainant Barrister PW 1 and started to chase his brother Tej Vansh (who was sitting at his door) to assault him. On the alarm raised by him, the complainant Barrister and his uncle Ram Raj PW 4 who were inside the house came out along with their lathis to save him. Near the Brahmsthan situated nearby, the accused -appellants started assaulting Ram Raj after surrounding him. Then the complainant Barrister and his brother Tej Vansh started defending him. The accused -appellants Shiv Dhari and Prem Narain alias Prema injured the complaint Barrister with lathis and the accused -appellant Banwari injured his brother Tej Vansh by the spear who died at the spot. Chhabi Nath PW 2, Megh Narain PW 3 and others of the village reached and witnessed the incident. The report was lodged by Barrister PW 1 on 24 -4 -1978 at about 5.00 a.m. at the concerned police station, the distance being three miles. A case was registered and investigation followed. The injuries of Ram Raj and Barrister were medically examined by Dr. Tej Bahadur Rai PW 10 on 24 -4 -1978 at 8.00 a.m. and 8.30 a.m. respectively.
(3.) THE following injuries were found on the person of Ram Raj: (1) Lacerated wound 1.5 cm x 5 cm x bone deep on left side of head, 5 cm above from left ear. (2) Contusion with swelling 9 cm x 8 cm on right shoulder. (3) Contusion with swelling 5 cm x 3 cm on right upper arm, on outer surface, 3 cm below right shoulder. (4) Incised penetrating wound 2cm x 1 cm x 4.5 cm deep on back, 26 cm below from left scapular region, directed downward. Blood oozing present. Kept under observation. Referred to S.S.P.G. Hospital, Varanasi for X -ray admission and technical opinion. (5) Contusion 8 cm x 2 cm on left side of back, 15 cm below from left scapular region. (6) Contusion with swelling 9.5 cm x 8 cm on left forearm, 4 cm above from left wrist joint. Kept under observation and advised for X -ray at S.S.P.G. Hospital, Varanasi. ;