- (1.) Challenge in this appeal is to the judgment and order dated 23.02.1985, passed by II Additional Sessions Judge, Azamgarh, in Sessions Trial No. 301 of 1982 (State vs Ram Dular and others), under Sections 147, 148, 307/149, 323/149 I.P.C., Police Station Atrauliya, District Azamgarh, whereby the accused-appellants Gharib, Ram Pyare and Jawahir were found guilty and sentenced to undergo one year rigorous imprisonment under Section 148 I.P.C.; three months' rigorous imprisonment under Section 323/149 I.P.C. and five years' rigorous imprisonment under Section 307/149 I.P.C., whereas the accused appellants Ram Dular, Jagdamba, Ramakant, Ram Kripal and Jamuna were found guilty and sentenced to undergo one year rigorous imprisonment under Section 147 I.P.C.; three months' rigorous imprisonment under Section 323/149 I.P.C. and five years' rigorous imprisonment under Section 307/149 I.P.C.
(2.) Filtering out the unnecessary details the prosecution case in brief is that a written report was lodged by Phool Chand stating that Gharib and Ram Dular are real brothers. Their mother is common but fathers are separate. Both have filed civil suit against the informant Phool Chand and used to pressurized him for compromise. The informant denied the compromise due to which both were inimical with the informant. On 30.05.1979, again they wanted to compromise the matter but the informant refused. At which at about 01:30 P.M., Gharib, Ram Pyare, Ram Kripal, Jagdamba, Ramakant armed with lathi, spear and gandasa came to the house of the informant, out of which Gharib was armed with spear, Ram Pyare and Jawahir were armed with gandasa and remaining were armed with lathi. On the exhortation of Gharib, with intention to kill the informant, the accused persons started beating the informant with lathi, gandasa. When the informant was being beaten his niece Tara, sister-in-law Gulichi and his wife Sharda came to save him but the accused persons also assaulted them with lathi. At this, the informant snatched the spear of Gharib, tried to safeguard his family and himself due to which Gharib sustained injuries. His wife Sharda also threw bricks to save herself due to which the accused persons sustained injuries. Awadh, Jagat, Jitai and others have tried to calm down everybody. When the informant fall down, his spear was snatched and taken away by the accused persons. The injured were medically examined. The informant was taken to the hospital because it was fear that he would die. When his situation improved, he lodged the report.
(3.) The prosecution examined as many as three witnesses. PW-1 is Phool Chand, the informant who proved the written report as Exhibit Ka-1. PW-2 is Sharda, the wife of the informant and the injured. PW-3 is the I.O. S.I. Ram Pyare Pandey who conducted the investigation. He prepared and proved the site plan as Exhibit Ka-2 and the charge sheet as Exhibit Ka-3. In cross-examination, this witness has proved the carbon copy of the chik scribed by Head Constable Jokhan Singh as Exhibit Kha-1.;