D. K. Trivedi, J. - (1.) THE present criminal appeal is directed against the judgment and order dated 15.5.1979 passed by the Sessions Judge, Barabanki, convicting the appellants under Sections 302/34, 325/34 and 323/34, I.P.C. and sentencing each of them to Imprisonment for Life, one year's rigorous imprisonment and four month's rigorous imprisonment respectively in connection with an incident which was alleged to have taken place on 23.10.1977 at about 7.00 a.m. in village Bhitauli Police Station Dewa District Barabanki.
(2.) THE prosecution case is that the accused and the complainant are related to each other. It is alleged that Mewalal deceased, Ganesh, Bhagwandin, Bipat and Ram Lal were real brothers. Mewalal has been murdered in this incident. His son Chandra Ket is the complainant. Ganesh had three sons namely Barati, Nanhey and Gajodhar and all the three brothers are appellants in this case. Initially, Smt. Sarjudei wife of Barati was also an accused and was prosecuted in this case but the learned Sessions Judge by the same judgment and order acquitted her from the charges. Bipat's son Siya Ram and Ram Lal's son Shiv Baran are the prosecution witnesses. It is the case of the prosecution that all these brothers had common fields but due to partition they were in possession of their respective shares and were cultivating their fields. It is said that on 23.10.1977 at about 7.00 a.m. Mewa Lal deceased complainant Chandra Ket. Kunti and Maya had gone to cut their paddy crop and were bringing the harvested crop to the Khalihan. It is said that all the appellants armed with Lathis alongwith Sarjudei armed with Banka arrived in the Khalihan and on the exhortation of accused Barati they started assaulting Mewa Lal by their respective weapons. An alarm was raised by Mewa Lal and hearing the alarm several persons including the complainant reached there. It is further said that Siya Ram (P.W. 4) and Shiv Baran (P. W. 2) tried to intervene but they were also assaulted by the accused persons. After the incident P. W. 1 Chandra Ket took his father to the Police Station and lodged a report Ext. Ka-1 at Police Station Dewa District Barabanki. A case under Sections 308, 324, 323, I.P.C. was registered against the accused persons but Mewa Lal died in the Hospital on the same day at about 4.00 p.m. therefore the case was converted under Section 304, I.P.C, P.W. 7, S. I., Sadanand Tewari was present at the time of lodging of the First Information Report, therefore, the investigation was entrusted to him. He recorded the statement of Chandra Ket and Shiv Baran at the Police Station and thereafter sent the injured for medical examination. He thereafter recorded the statements of the other witnesses and prepared a site-plan (Ext. Ka-8). He also recovered blood stained as well as plain earth from the place of the incident. It is further said that the Investigating Officer thereafter searched the houses of the accused persons and from there he recovered three blood stained Lathis. After completing the investigation he submitted charge-sheet against the accused persons. P.W. 3 Dr. Y. K. Jalota examined the injuries of Mewa Lal, when he was alive, Shiv Baran as well as Siya Ram and prepared injury reports Ext. Ka-2 to Ka-4. He also proved X-ray report (Ext. Ka-5). He found fracture of Shaft of fourth metacorpal bone of the left hand of Shiv Baran. Dr. Y. K. Jalota examined the injuries of Mewa Lal on 23.10.1977 at about 11.30 a.m. and found the following five injuries on his person : 1. Lacerated injury 2 cm. x .5 cm. x bone deep on left side of scalp, 4 cm. above the outer 1/2 of left eyebrow. There was contused swelling around this injury in an area of 4 cm. x 5 cm. 2. Penetrating wound on left side scalp just above the outer end of left eyebrow, size 1 cm. x .3 cm. x .2 cm. 3. Lacerated injury over vertex 8 cm. x. 5cm. x bone deep, 7 cm. above the external occipital protuberance. There was contused swelling in an area of 14 cm. x 12 cm. around this injury. 4 Black eye on left side with subconjunctival haemorr hage.
(3.) CONTUSED swelling on left forehead on dorsal surface, size 6 cm. x 8 cm., 4 cm. above the left wrist joint 5. The injuries were fresh and according to him the injuries Nos.1, 3 and 5 were caused by blunt object like Lathi and injury No. 2 had been caused by penetrating weapon. Doctor Jalota further found three injuries on the body of Shiv Baran which are as under: 1. Incised wound 3 cm. x 5 cm x muscle deep Just above the lateral half of right eyebrow. 2. Incised wound over left ear pinna, 1 cm. below its upper end upto 1-1/2 cm. deep towards left ear base. 3. CONTUSED swelling over dorsum of left hand, size 4 cm. x 5 cm. above the base of medial three fingers. According to the Doctor injuries Nos.1 and 2 were caused by sharp edged weapon and injury No. 3 by a blunt object. On X-ray examination, fracture of the shaft of fourth metacarpal bone of Shiv Baran was found. The injuries were also found to be fresh.;