- (1.) The present Criminal Appeal has been filed against the judgment and order dated 4.1.1982 and 6.1.1982 passed by Vth Additional Sessions Judge, Basti in Sessions Trial No.275 of 1978 convicting the appellant nos. 1, 2 and 7 under section 148 I.P.C. and sentencing them to 1 years R.I., appellant nos. 3 to 6 under section 147 I.P.C. and sentencing them to six months R.I., appellants nos.1, 2 and 7 are further convicted under section 307/149 I.P.C. and sentence to undergo seven years R.I. and a fine of Rs.2,000/- each, appellant Nos. 3 to 4 are convicted under Section 307/149 I.P.C. and sentence to undergo three years R.I. and applicant nos. 4 and 5 convicted under Sectioin 307/149 I.P.C. along with to 5 years R.I. and fine of Rs. 2,000/- each and in default of payment further undergo six monthsR.I. and further convicting all the appellants under section 323/149 I.P.C. and sentencing them to undergo six months R.I., appellant No.3 has been further convicted under section 436 I.P.C. and sentence to undergo three years R.I.
(2.) The prosecution case in brief is that the complainant is resident of Village Nadya Police Station Rudhauli, District Basti. It is stated that there was a Shesam tree belonging to one Ori Kahar. The accused Ramkuber, Bhuwal, Roodal, Sant Ram, Chanika who are resident of Village Nadya Mangal, R/o Village Nishar and Bangali R/o Village Ramwapur on 20.3.1976 at about 4:00 P.M. started to cut down Sheesam tree belonging to Ori on account of the enmity as there was some litigation. The accused were armed with Gun, country made pistol and Lathi and Ori was protesting against the accused from cutting down the said Sheesam tree and on the alarm raised the complainant Haridwar Pathak, Abdul Aziz, Abdil Khaliq, Abdul Samshad, Mustfa, Smt. Azora W/o Ori, Bismilla, Sail Mohammad, Ram Sumer and many others of the village reached there and resisted from cutting the said tree. The accused thereupon fired by country made pistol and gun on the witnesses and they also assaulted the witnesses with lathi. Thereafter the accused had set ablaze the Ghari of Ori in which cattle were tethered due to which Ori suffered a loss to the extent of Rs.400/-. The accused Ram Kuber was armed with gun and accused Bhuwal and Bangali were armed with countrymade pistol. The complainant Abdul Khaliq, Mustfa, Abdul Samad, Smt. Azora, Singri and Smt. Shanti received gunshot injuries and the witness Bisalat has received injuries from lathi. The injured were medically examined, who are as under:- Examined On 21.3.1978 at 1:30 A.M. Abdul Khaliq aged about 30 years S/o Sabir Ali Vill. R/o Nadya P.S. Rudhauli (Basti) B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali M.I.: A black mole face left side 2 cm lateral to eye Inj: (1) G.S.W. entrance 0.6 cm x 0.2 cm x skin deep face left side 2 cm super lateral to angle of lips. (2) G.S.W. entrance 0.2 cm x 0.2 cm x skin deep of top of right shoulder joint 3 cm lateral to neck. (3) G.S.W. entrance 0.3 cm x 0.3 cm muscle deep chest midline, 5 cm below root of neck. (4) G.S.W. entrance: 0.2 cm x 0.2 cm x skin deep chest right side just lateral to nipple (5) G.S.W. entrace 0.2 cm x 0.2 cm x skin deep, left index finger Injuries kept under observation ad. X-ray. No blackening tatooing or scorching Caused by firearm. Duration about 1/2 day back Examined Hardwar on 21.3.1978 aged about 45 years s/o Chandi Pd. Village Nadya, P.S. Rudhauli (Basti) B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole just behind left angle of jaw. Inj: G.S.W. 0.2 cm x 0.2 cm skin deep rt. Leg 21 cm below Simple, ad. X-ray short area. By firearm. Tatooing, blackening, scorching absent. Duration about 1/2 day back. Examined On 21.3.1978 at 2:00 A.M. Mohd. Mustfa aged about 65 years s/o Mansab Ali r/o vill. Nadya P.S. Rudhauli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole chest rt. side, 12 cm. Just above nipple. Inj: G.S.W. entrance 0.2 cm x 0.2 cm x skin deep, upper lip, rt. side 0.5 cm below nose. U.O. advised x-ray. No blackening, tattoing or scorching Caused by firearm. Duration about 1/2 days back. Examined On 21.3.1978 at 2:15 A.M. Basalat aged about 67 years s/o Guman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole chest left side, 13 cm superamedial to nipple. Inj: (1) Lacerated wound 2 cm x 0.3 cm left side scalp, 12 cm above left ear. (2) Contusion 8 cm x 4 cm back rt. scapular region, red, oblique. (3) Contiusion 10 cm x 4 cm bak rt side 8 cm below scapula. Simple. Cause by blunt weapon. Duration about 1/2 day back. Examined On 21.3.1978 at 2:30 A.M. Singari aged about 35 years w/o Lalman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black mole left side forehead 1 cm above eyebrow. Inj: (1). G.S.W. (entrance) 0.2 cm x 0.2 cm x skin deep, forehead midline, 4 cm above root of nose. (2) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep rt. thumb dorsal x part, Ist phalanx. (3) G.S.W. (entrance) 0.2 cm x 0.2 cm x skin deep, rt. thigh, out and upper part, 35 cm above knee joint. U.O., ad x-ray. No tatooing, blackening, scorching. Duration about 1/2 day back. Caused by firearm. Examined On 21.3.1978 at 2:45 A.M. Ajora aged about 35 years w/o Ori R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A Black more rt. upper arm, outer part, 3 cm above elbow jt. No injury seen Examined On 21.3.1978 at 3:45 A.M. Shanti aged about 32 years w/o Rajman R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. No. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A Black mole rt. cheek 4.5 cm from angle of lips. Inj: (1) G.S.W. entrance 0.2 cm x 0.2 cm x superficial rt upper arm upper and medial part, 14 cm above elbow jt. Simple. Cause by firearm. Duration 1/2 day back. Examined On 21.3.1978 Abdul Samad aged about 35 years w/o Ori R/o vill. Nadya P.S. Rudhaoli (Basti). B.B. C.P. 33 (Sukhnandan Singh) P.S. Kotwali. M.I. A black raised mole left temple, 3 cm from eye brow. Inj: (1) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep, top of left shoulder Joint overlying lat. end of clavicle. (2) G.S.W. (entrance) 0.2 cm x 0.2 cm x bone deep, overlying rt. clavicle, 8 cm from midline. (3) G.S.W. (entrance) 0.2 cm x 0.2 cm x muscle deep, abdomen left side, 3 cm above iliac crest, 13 cm lat. to amblicus. All U.O. ad X-ray. By firearm, No blackening, tatooing or scorching. Duration about 1/2 day back.
(3.) The complainant Hardwar Pathak lodged an F.I.R. on 20.3.1978 at Police Station Kotwali, District Basti and the injured were medically examined on the same night and the case was transferred to Police Station Rudhauli, the Police at Rudhauli Station investigated the case and submitted the charge sheet against the accused persons. The accused Rudal, Sant Ram, Chanika and Mangal have been charged under section 147, 307, 323 read with section 149 and 436 I.P.C. The accused pleaded not guilty of the charges and stated to have been falsely implicated due to enmity. The accused Ram Kuber stated that he is village Pradhan and further stated that he has not given any land on Patta to the prosecution witnesses but has given the same to the person of Scheduled Caste and on account of which he has been implicated. It was pleaded by the defence that a dacoity was committed in the village at about 8 p.m. instead of lodging F.I.R. against the docoits the same has been lodged against the applicants.;