D.K.Trivedi, J. - (1.) The present criminal appeal is directed against the judgment and order dated 25-8-1988 passed by Special/AddI. Sessions Judge, Rai Bareli convicting the appellants u/Section 307/34, I.P.C. and sentencing each of them to three years R.I. Initially ten persons were prosecuted but the learned Sessions Judge convicted four of the accused persons u/Section 307/34, I.P.C. and acquitted the remaining six accused persons.
(2.) The prosecution case in brief is that on 14-5-1979 at about 7.30 a.m. accused Kedar alongwith other accused-appellants was cutting Jungle Jalebi tree alleged to be lying in the Ahata of the complainant Ram Ji. It is said that the complainant on receiving this information, rushed to the place of the incident and tried to stop the cutting of the said tree. It also informed the accused persons that as the litigation is going on. Therefore, the tree be not cut till the decision of the case. It is further said that the accused persons continued to cut the said tree and in the meantime. P.W.2 Ram Das, the father of the complainant also reached there and tried to snatch the axe from the hands of one Kedar. It is also alleged that in the meantime the wives of Badri, Jamuna, Kedar and Chhotai, as well as the daughter of Badri (accused) armed lathis-Dandas arrived there and they exhorted the remaining accused persons to kill Ram Das. It is the case of the prosecution that on the instigation of these ladies, the accused persons started assaulting Ram Das by lathis Dandas, as a result of which he had fallen on the ground and the complainant who was also assaulted tried to run away and reached at the door of his house. It is further stated that the accused persons also chased the complainant and entered into his house and accused Kedar assaulted the mother of the complainant with his axe. It is further said that Ram Das was brought to his house on the cot. It is further said that the accused persons again came there and accused Kedar and Jamuna again assaulted Ram Das. It is said that as the condition of Ram Das was serious therefore, he was brought to PHC Singhpur but at Singhpur PHC, the complainant was advised to shift Ram Das to District Hospital Rai Bareli for proper treatment and there P.W. 1 Ram Ji got a written report Ext. Ka-1 scribed by Shiv Kumar (P. W. 7) and handed over the same to the S.P., Rae Bareli on that very date (14-5-1979) at 10. 10 P.M. The S.P., Rae Bareli had endorsed the F.I.R. (Ext. Ka-l) to Inspector Kotwali for registration of a case on its basis. The case was registered and thereafter the same was transferred to P.S. Shivratanganj on 18-5-1979. P.W. 6 S.I. Basdeo Rai conducted the investigation in this case am he recorded the statements of the witnesses in the village and thereafter, prepared a site plan Ext. Ka-8. After completing the investigation, the Investigating Officer submitted the chargesheet against all the ten accused persons. The injured persons namely. Ram Das (P.W. 2). Smt. Indra Kumar and Ram Ji (P.W.1) were medically examined on 14-5-1979 at about 10 a.m., 11.50 a.m. and 12.10 p.m. by Doctor O.P. Srivastava, the then Medical Officer in charge, PHC Singhpur, Rai Bareli. The doctor found the following injuries on the body of the injured persons: Injuries of Ram Das (P.W.2) 1) Lacerated wound on head at top - 4.5 cm x 1.50 cm x bone deep, 11.7 cm above the right ear. Margins were lacerated and blood was coming out. Margins were irregular and bruised. 2) Lacerated wound on top of head 6.5 cm x 1:50 cm x bone deep in continuation of injury No.1. Margins were crushed and blood was coming out. Direction was oblique. 3) Lacerated wound on top of head 7 cm x 2 cm x bone deep in continuation of injury No. 2. Direction was oblique. Blood was coming out, and margins were crushed and irregular. 4) Lacerated wound on the top of head 4cm x 2cm x bone deep in continuation of injury No.3. Blood was coming out and margins were crushed. Direction was oblique. 5) Lacerated wound on the top of head 6cm x 2cm x bone deep. Margins were crushed and blood was coming out. Direction was oblique. 6) Lacerated wound 3.2cm x 2cm x bone deep towards nose on left lateral side of top of head 5 cm above the left ear. Margins were crushed and blood was coming out. 7) Lacerated wound 3.2cm x 5cm x bone deep on root of upper lip involving the left nostral nasal. Margins were irregular and blood was coming out from both the nostrils. 8) Lacerated wound 1 cm x 5cm x bone deep on the root of nose. Cracking sound was present on movement of bridge of nose. 9) Lacerated wound 2.5cm x 0.5cm x bone deep on lateral end of left eye brow just above the left eye. Blood was coming out and margins were crushed. 10) Echymosis was present around both the eye lids including root of nose. 11) Contusion on left fore-arm starting from left elbow joint -11 cm x 4cm. Colour was red. 12) Diffused swelling in middle of left fore-arm with deformity shortening of left fore-arm was present. Complained of pain in both legs, chest and head, face and both arms. 13) Lacerated wound (A) 1 cm x 0.5cm x bone deep on left side of upper jaw. Margins were lacerated and gums were also lacerated. Front incisors were loose and moving with bone. Left second incisor was broken. Right second incisor was broken. Lacerated wound 2 cm x 5 cm x bone deep on right side of upper jaw the base of 2nd incisor. (B) Lower jaw: Front 4 incisors were loose and pushed the mouth. Teeth in upper jaw ten including two broken on lower jaw. Fifteen including four were loose teeth of front. There was profusely bleeding from injury No. 13. Injuries Nos. 1 to 6 were kept under observation and X-ray of skull was advised, injury Nos. 7 and 13 were grievous, injury No. 12 was also grievous and X-ray was advised for upper and lower jaw as well as for left fore-arm, injury No.8 was kept under observation and X-ray of nasal bone was advised. In the opinion of the doctor injuries Nos. 9, 10, and 11 were simple in nature and were caused by blunt weapon and were found fresh at the time of examination. Injuries of Smt. Indra Kumari Incised wound 4cm. x 1.5cm x 1.5 cm vertically on back of left fore-arm 2 cm above the left wrist. Margins were clean cut and angles were sharp. Blood was oozing out, blood clots were present. TI In the opinion of the Doctor this injury was simple in nature and was caused by sharp weapon and was fresh at the time of examination. Injuries of Ram Ji, the complainant (P.W.1) 1) Lacerated wound on top of head 5 cm x 1 cm x bone deep, 14 cm above the right ear anterio-posterior. Margins were irregular and crushed. Blood was oozing. 2) Lacerated wound 1.5 cm x 0.5cm x 0.5 cm on left side of head at the top 9 cm above the left ear anterio-posterior. Margins were irregular. Blood was oozing. 3) Abrasion with contusion 1cm x 1 cm on back in middle at the root of neck. Its colour was red. 4) Contusion 1.5cm x 1 cm on back of left fore-arm in middle. Its colour was red. According to the doctor, all the injuries were simple in nature and were caused by blunt object and at the time of examination the injuries were found fresh. The injuries reports are Exts. Ka-2 to Ka4 respectively. In support of its case, the prosecution examined as many as seven witnesses. Out of them, P.W. 1 Ram Ji, P.W. 2 Ram Das and P.W. 3 Gaya Prasad are witnesses of fact. P.W.4 Dr. O.P. Srivastava examined the injuries of the injured persons and proved the injury reports. P.W. S Constable Girish Chandra Shukla registered the case and prepared the G.D. P.W. 6 S.1. Basdeo Rai conducted the investigation in this case and after completing the investigation submitted chargesheet against the accused persons. P.W.7 Shiv Ku mar scribed the report.
(3.) On the other hand the accused persons denied the prosecution case and some of them stated that in fact the Jungle Jalebi tree belonged to the accused persons and the same was standing on the land of the accused persons. It is said that the complainant's party was cutting the Jungle Jalebi tree, and on protest, the complainants party assaulted the accused persons and then they tried to wield their lathis in their self defence, Accused Kedar denied the prosecution case and stated that he tried to stop the cutting of Jungle Jalebi tree by the complainant's party bud hey assaulted the accused persons. He denied the presence of the ladies at the time of the incident. Appellant Badri stated that he was assaulted by P.W.1 Ram Ji and P.W.2 Ram Das. Appellant Triveni denied the prosecution case and stated that the Jungle Jalebi tree was being cut by Ram Ji and Ram Das. Appellant Jamuna also stated that the tree was cut by Ram Ji and Rani Das and he asked them to stop the cutting of the said tree put the complainant's party assaulted the accused persons. Appellant Chhotai also stated that the tree was being cut by the complainants party and the complainant's party assaulted the accused persons.;