ANIL KUMAR SHARMA, J. - (1.) CHALLENGE in this appeal is to the judgment and order dated 5.3.1984 passed by Sri M.K. Mittal, the then VIth Addl. Sessions Judge, Jhansi in S.T. No. 212 of 1982 (State Vs. Balbir and two others) whereby the appellants were found guilty for the offence punishable under Sections 325 read with section 34 IPC. Appellants Balbir and Roop Singh have been sentenced to undergo one year's rigorous imprisonment while appellant - Bindrawan was given benefit of Section 4 of U.P. First Offenders Probation Act. During pendency of the appeal, appellant - Bindrawan has passed away.
(2.) SHORN of details, the prosecution story as contained in the FIR and unfolded during trial is that on 8.8.1981 at about 6:30 P.M. the complainant lodged first information report with the P.S. - Moth, District - Jhansi against the accused -appellants alleging that they had assaulted the complainant with intention to kill him. As per the FIR version, ten days before the instant incident, the son of Pradhan of Bhairaw Ghat was bitten by snake and cousin of the complainant namely Gulab Yadav went to Jhansi with him for treatment. The divorced first wife of Roop Singh was living at Jhansi. Roop Singh was told by somebody that the cousin of complainant namely Gulab Yadav had instigated his wife to file a case of maintenance against him which annoyed him so he was in search of an opportunity to beat Gulab. The complainant Man Singh told Roop Singh not to beat him, but he was annoyed with the complainant. On 6.8.1981, two days prior to the incident, accused -appellants came at the house of Gulab but the complainant closed the doors of the house and could not assault him and left after hurling abuses. On the date of incident, while the complainant was returning from his field and reached near the shop of Sarju Baba of the village at about 6.30 p.m., the accused persons came from their houses and surrounded him with intention to assault. Appellant -Balbir Singh was armed with axe, appellant - Roop Singh was having a spear and appellant Brindawan was armed with lathi. Brindawan exhorted his sons (appellants No. 1 and 2) to kill the complainant and gave a lathi blow upon him. Accused - appellant Roop Singh assaulted his right arm with spear, the complainant wrested the spear from him, then Balbir attacked on his head with axe and Roop Singh began to beat with lathi causing injuries to the complainant. On his cries, Balram son of Meghraj Yadav, Shyam Lal son of Dhaniram Gadariya, and Manni Lal son of Maharaj Singh Yadav rushed and exhorted then, the accused - appellants took to their heels and entered the house. It has been further alleged in the FIR that if those witnesses had not come the complainant would have been killed at the hands of the accused -appellants. On the basis of this report a case at Crime No. 119 of 1981 under sections 308 IPC was registered, investigation whereof was entrusted to SI Abdul Qayum Khan (P.W. -4). He reached at the spot, recorded statement of witness Balram Yadav and prepared site plan Ex. Ka -7. His investigation culminated into charge against the accused persons.
(3.) THE injured Man Singh was medically examined by Dr. Y.K. Sharma, Medical Officer Primary Health Centre, Moth on 8.8.1981 at 9:30 P.M. He found the following injuries on the persons of the injured: - 1. Incised wound 1 -1/2 x 2/10" x bone deep in whole of the length on left side fore -head above downwards just above eyebrow bleeding. 2. Lacerated wound 1" x 2/10" x scalp deep on scalp oblique direction 5" from Tragus of left ear and 8" from bridge of nose. Bleeding present. 3. Lacerated wound 7/10" x 2/10" x scalp deep on left side vault of scalp oblique direction 4" from Tragus of left ear. Bleeding after removing clots. 4. Contusion 4 -1/2" x 1" red colour on lateral side of upper pv of left thigh horizontal direction 1 -1/2" below greater trochenter. 5.Contusion 4 -1/2" x 1" red colour on lateral side of upper part of left thigh directing downwards 1 -1/2" below greater trochenter. 6. Contusion 3" x 1" red colour post aspect of left thigh horizontal direction 8" above knee. 7.Contusion 3" x 1" red colour post aspect of left thigh horizontal direction 4" above knee. 8. Contusion 2 -1/2" x 1" on lateral aspect of left thigh 7" above knee red colour. Swelling present. 9.Contusion 3" x 1" on lateral aspect of left thigh 4" above knee horizontal direction. 10. Contusion 2" x 1" on lateral Moleolem left leg horizontal red colour swelling. 11. Contusion 1 -1/2" x 1" on lateral aspect of left elbow above downwards. 12. Contusion 1 -1/2" x 7/10" oblique on lateral aspect of left forearm red colour. 13. Penetrating wound 5/10" x 2/10" x 7/10" on posterior lateral aspect of right upper arm 2 -1/2" above elbow joint. 14.Contusion 2" x 7/10" red colour posterior lateral aspect of right forearm oblique direction 3" below elbow joint 15. Contusion 5" x 1" on right side back of chest downwards and lateral from 5th thorasic spine. Red colour. 16. Contusion 3" x 1 -1/2" on left side back of chest downwards medially from 4th thorasic spine. 17.Contusion 4" x 1" red colour above downwards and medially on post aspect of right thigh 3" above knee. 18. Abrasion 1" x 7/10" on lower part of right knee joint in front side. In the opinion of the doctor the injuries were fresh, pupil of both eyes were equally reacting to light and no symptom of vomiting was present. Injury no. 1 was caused by sharp edged weapon, injury no. 13, by pointed weapon and rest, by blunt weapon. The injuries were kept under observation. The Doctor proved the injury reports, Ex. Ka.4 to Ex. Ka.6. As per the supplementary report dated 13.08.1981, there was swelling around ankle - injury No. 10; with pain and tenderness. Rest injuries were healing. On X -ray examination injury No. 10 was found grievous as fracture in calcanium bone was found, as per second supplementary report dt. 18.8.1981 prepared on the basis of the report of Radiologist, District Hospital Jhansi. Doctor opined that the injuries could have been caused on 8.8.1981 at 6:30 P.M. Injury No.1 could have been caused by axe, injury No. 13, by spear and the rest by Lathi. Cumulative effect of these injuries was reported not to be fatal for life. On 24.8.1983, Sri M.K. Mittal, the then Vth Addl. Sessions Judge, Jhansi has farmed charges against the appellants under Section 308 IPC and on 20.1.1984, it was amended by the same learned trial Judge to be under Section 307 IPC.;