ASHWANI KUMAR SINGH, J. - (1.) THIS appeal under Section 374 Cr.P.C. has been preferred by appellants Nanhakkey; Ayodhya @ Jodhya and Hari Shankar @ Bhaina, sons of Ram Deen resident of Village Maseerha Hameer, P.S.Mall District Lucknow against the judgment and order dated 23.04.2005 passed by Addl. Sessions Judge, Court No.4, Lucknow in Sessions Trial No.279/01 convicting and sentencing each of the appellant under Sections 325 I.P.C. to simple imprisonment for six months and fine of Rs.300/ - and under section 323 I.P.C. to a term of one month's simple imprisonment. In default of payment of fine each of the appellant to undergo one month's additional imprisonment. The appellants were acquitted from charges under section 307 I.P.C.
(2.) APPELLANT Nanhakkey died during pendency of the instant appeal, as such, a report was called from C.J.M. and his appeal was abated vide order dated 28.3.2014.
(3.) BRIEFLY stated, the prosecution case is that complainant Rakesh Kumar, resident of Maseerha Hameer had some altercation with Nanhakkey; Ayodhya @ Jodhya and Hari Shankar @ Bhaina on 9.11.1999. On 10.11.1999 at 5:30 a.m., complainant's father Ram Narain went to attend the call of nature where accused Nanhakkey; Ayodhya @ Jodhya and Hari Shankar @ Bhaina ambushed and, in order to kill complainant's father, assaulted him with 'Lathi'; 'Kanta' and 'Banka'. On alarm being raised by complainant's father, Villagers reached at the spot and all three accused persons fled away. The incident was witnessed by many villagers. Complainant's father received serious injuries on head, hand and other parts of the body. The report of the incident was lodged at police station Mall under Section 307/323 I.P.C. The case was registered in G.D. The injured was sent for medical examination on the same day i.e. 10.11.99 at 9:30 a.m. at C.H.C. Mall. The injuries of injured Ram Narain were X -rayed at Balrampur Hospital under the supervision of Dr.R.K.Saxena; X -ray report was prepared. The investigation was taken up by S.I. Chhotey Lal Jatav. Investigating Officer reached at the place of occurrence and on the pointing out of the complainant and injured, prepared the site plan and recorded the statement of witnesses. The Investigating Officer was transferred and the investigation was handed over to S.I. Krishna Kant who completed the same and submitted charge sheet under Sections 323,307 I.P.C.;