- (1.) THIS is an appeal against the judgment and order, dated 6-2-1980 passed by Sri S. N. Mishra, the then IInd Additional Sessions Judge, Jaunpur in S. T. No. 220 of 1977, whereby he convicted the accused- appellant Dina of the offence under Section 307/34ipc and sentenced him to undergo R. I. for a period of 3 years.
(2.) I have heard the counsel for the parties and have also gone through record. The injured in this case was Ramanand P. W. 2. The informant Salik Ram was his real brother. Devi Prasad, P. W. 4 was son of Salik Ram P. W. 1 Hiramani P. W. 5 is son of Shiv Mangal who was real brother of Mangal, father of the injured Ramanand and informant Salik Ram. The prosecution story as disclosed in the FIR lodged by Salik Ram P. W. 1 at the police station Zafrabad on 11-1-1977 at 7. 15 p. m. was that some days prior to the date of occurrence, somebody had cut 2-3 mango trees of Kariya Shukla and Kariya Shukla used to claim that the mango trees have been cut by Ramanand injured, that the complainant's side used to threaten that they would cut Ramanand in the same way as the mango trees have been cut that on 11-1-1977 he (Salik Ram informant), his brother Ramanand injured and informant's son Devi Prasad while returning to their house after 5 watching their fields at 4-5 p. m. at evening, they reached near the Pahi (Gonda) of Kariya Shukla Lochan son of Kariya Shukla, Dina accused-appellant (son of Kariya Shukla), Kailash son of Vikrama and Vikrama of the village challenged Ramanand and retorted, "aaj ISKO JAN SE MAR KAR KHATM KAR DENA HAI", that Lochan was armed with Gandasa, Dina accused-appellant with Tengari, Kailash and Vikrama with Lathies; that Ramanand received injuries on his body and fell down on the ground; that on the alarm of the victim, the informant and that informant's son Girja, Heeramani and many others reached at the spot and saw the occurrence and the accused persons ran away. Ramanand injured was medically examined in the District Hospital, Jaunpur on 11-1- 1977; at 8. 30 p. m. The doctor found the following injuries on his person: (i) Lacerated wound 4. 5 cm x scalp deep on Rt. frontal area of head 4 cm above Rt. Eye brow. (ii) Lacerated wound 4 cm x 2 cm x scalp deep on Rt. parietal area of head 5 cm above ear. (iii) Incised wound 7 cm x. 5 cm x bone depth Lt. side of forehead. (iv) Incised wound 4. 5 cm x 4. 5 cm x bone deep on Lt. side of nose and lip. (v) Lacerated wound 2. 5 cm x 0. 3 cm x scalp deep on Lt. side of back of head. (vi) Lacerated wound 1 cm x 1 cm x scalp deep on back of head just below inj. No. 5. (vii) Incised wound 4 cm x 1 cm x bone deep on back of Rt. elbow. (viii) Incised wound 2. 5 cm x 1 cm bone deep on dorsum of Rt. foot outer. (ix) Incised wound 5 cm x 1. 3 cm x muscle deep on inner aspect of Lt. leg 4 cm above wrist joint. (x) Incised wound 5 cm x 1. 5 cm x muscle deep on inner aspect of Lt. leg 4 cm above wrist joint. Ail the injuries were fresh and injury Nos. 3,4,7,8,9 & 10 were caused by sharp edged weapon, while injury Nos. 1,2,5 & 6 were caused by blunt object. The medical report was Ex. Ka-7.
(3.) THE dying-declaration of Ramanand injured was recorded by Executive Magistrate on 12-1-1977 at 11. 15 a. m. THE statement was to the effect that on the previous day, he was watering to his field, that the evening had fallen, that his brother's two young sons were present there, that his brother asked him to escort these boys to the house as the night is falling, that as soon as he reached near the Dalan of the Pahi of Ram Lochan, Dina accused-appellant caught hold of him and asked them to go in Pahi (Dalan) that in the meantime, Lochan, Kailash, Dina Mangal Wallu's son came there with Gandasa and Tengari used for cutting wood and started assaulting him, that Lochan assaulted him with Gandasi, Dina assaulted him with Tengari, Kailash assaulted him with Danda and Mangal throw him to the ground and mounted on his chest, that his nephew ran and cried, thereupon Rampher, Girja Dayal, Teni and Salik Ram rushed to the spot to save him and the assailants run away. A copy of the dying declaration is Ex. Ka-11. Since the victim survived this dying declaration ceased to be substantive evidence. On the FIR lodged by the informant, the case was registered against the 4 accused named in the FIR namely, Ram Lochan, Dina, Kailash Nath and Vikrama and after usual investigation, charge-sheet was submitted against all the 4 accused persons and after committal the charge was framed against them under Section 307/34, IPC but Ram Lochan died and the amended charge was framed against the remaining accused persons.;