N.K.Mehrotra, J. - (1.) THIS is a revision under Section 397/401 of Code of Criminal Procedure against the judgment and order dated 19.4.1991 passed in Criminal Appeal No. 30/90: Jag Prasad v. State, by Sessions Judge, Gonda confirming the judgment and order dated 20.9.1990 passed by the Assistant Sessions Judge, Gonda in Sessions Trial No. 326/86 convicting the revisionists under Sections 308/34 and 323/34 and sentencing all the revisionists to an imprisonment of three years R.I. and six months R.I. each with a sentence of fine of Rs. 200 each under Section 308/34 and in default of fine, one month's R.I. each.
(2.) THE appellate court in the impugned order has modified the sentence passed by the learned trial court of one month's R.I. to sentence of one month's simple imprisonment in default of payment of fine. I have heard the learned Counsel for the revisionists and the learned Additional Government Advocate. According to the prosecution story, Kaushal Singh accompanied by Krishna Pal Singh was coming from Tarabganj by a rickshaw at 6.00 p.m. on 4.3.1986. They reached near village Baisan Purwa. They were on road. Suddenly Jag Prasad, Ram Dularey, Sugriv and Sunder armed with kaanta and lathis arrived there and started committing assault on the informant and his companion Krishna Pal Singh. On hearing the cry, Narsingh Bahadur Singh, Nirmal Kumar Singh and Avadh Raj Singh reached on the spot and then assailants ran away. Krishna Pal Singh's condition was serious. The injured were taken to police station, Paraspur and a written report was lodged there. At the time of medical examination, there were six lacerated wounds, eight contusions and three abrasions on the body of Krishna Pal Singh. At the same time, Medical Officer noted one lacerated, two abrasions and one contusion on the body of Kaushal Kishore Singh. It is clear from the F.I.R. that according to the prosecution case, accused Jag Prasad was having kaanta and accused Ram Dularey, Sugriv and Sunder were having lathis in their hands. A perusal of the statement of Dr. P. C. Shukla, P.W. 5 also goes to show that there was fracture of the nasal bone of Krishna Pal Singh. This was grievous injury. A perusal of the injuries of the injured persons also goes to show that there was no incised or cut wound caused by kaanta.
(3.) LEARNED Counsel for the revisionists has argued that for holding the accused guilty under Section 308, I.P.C., the prosecution has to prove that accused has intention or knowledge that if death is caused by his act, he would be guilty of culpable homicide not amounting to murder and in this case, there is no such evidence by which the intention of the accused to commit culpable homicide not amounting to murder can be gathered.;