- (1.) ON the basis of a report of the C.J.M., that the appellant Ram Manohar had died, his appeal was ordered to be abated by an order dated 16.9.2013. Now the appeal preferred by Mahabal, Gonai, Gonahal, Vishram and Chandrajit survives.
(2.) THIS criminal appeal is directed against the judgment of the II Additional District and Sessions Judge, Gorakhpur dated 31.10.1984 convicting and sentencing the appellants to imprisonment for life under Section 302/149 I.P.C., for two years R.I. under Section 325/149 I.P.C., two year R.I. under Section 323/149 I.P.C. and one year R.I. under Section 147 I.P.C. in S.T. No.128 of 1982.
(3.) BRIEFLY the prosecution case was that on 26.1.1981 at about 11:30 a.m., the appellants were trying to make a drain on the 'sahan' in front of the house of the informant Tamesher for draining out the water discharged from their hand pump. When the informant opposed the making of the drain as he said that he used his bullocks for running a Kohlu (sugar crushing plant) at the spot and his work would be adversely affected an altercation took place between the parties. As a consequence the appellant Ram Manohar went to his house and brought out a 'pharsa' and the other appellants Mahbal S/o Aati, Gonai S/o Khudbud, Gunahal and Vishram S/o Ram Manohar and Chandrajit S/o Bam Bahadur came out with 'lathis' on which the family members of the deceased intervened whereupon the appellant Ram Manohar assaulted one Ram Daur s/o Tameshar on his head with a 'pharsa' and other family members of the informant. The report of this incident was lodged by Tameshar P.W. -3 at Police Station Gulriha Bazar on 26.1.1981 at 11:05 p.m. The case was registered in the presence of Ramnandan Thakur, Sub Inspector, who commenced the investigation. As the condition of the injured Ram Daur was serious, hence he was immediately sent to the Medical College. After recording the statement of the other injured namely, Tameshar and Nirmal, they were also sent for their medical examination. Tameshar was medically examined by P.W. -8 Dr. A. K. Srivastava on 26.1.1981 at about 3:15 p.m. According to the doctor the description of his injuries were as follows: - (i). There is a contusion on the dorsal aspect of the left forearm on internal side upto left wrist joint, size 10.5 cm long x 5 cm. wide. There is a pin point punctured wound 2 cm. from left wrist joint and blackening was present from that pin point punctured wound. (ii). There is a painful contusion on right elbow joint 1cm. X 1cm. (iii). There is continuous bleeding from right ear with 5cm x 5 cm. contusion around right ear. 4. Nirmal was medically examined by P.W. -8 Dr. A. K. Srivastava on 26.1.1981 at about 4:30 p.m. and he had received following injuries: - (i). There is a contusion on forehead 4.5 cm. away from root of nose size 5.5 cm. vertical and 3 cm. wide.;