Rajnish Kumar, J. - (1.) The instant appeal has been preferred by the appellants Lok Nath and Dev Chandra alias Dev Chander under Section 374 of the Code of Criminal Procedure against the judgment and order dated 31.01.2001 passed by the learned Additional Sessions Judge, VI, Gonda in Sessions Trial No. 48 of 1994, vide Case Crime No. 77 of 1991, under Section 308 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.)awarding four years rigorous imprisonment to each of them with a fine of Rs. 2000/- each and in the event of non-payment of fine, the accused will have to undergo six years rigorous imprisonment. It has further been provided that on deposit of the fine,Rs. 3,000/- would be paid to the injured Gaya Dutt as damages.
(2.) Learned counsel for the appellants submitted that accused-appellants have not been convicted previously for any offence and they are the first time offender. He further submitted that the appellants had also prayed before the learned Trial Court that they have not been convicted previously and they are the first time offender and they are from the elite family and of lesser age and they are the only earning members in the family, accordingly, they may be granted the benefit of first offender. Though the learned Trial Court considered the same but even then awarded the punishment as aforesaid.
(3.) As per the prosecution case, the accused-appellants Lok Nath and Dev Chandra had inflicted grievous injuries upon Gaya Prasad Mishra by assaulting him with Lathi's near the house of Ram Pratap Harijan, by which the death was possible. The report of the incident was lodged at Kotwali Dehat and the medical examination of the injured was conducted. After investigation, a chargesheet was submitted under Section 308 and 323 I.P.C. After framing of the charge, the same was denied by the accused. Accordingly, the trial was conducted. After the evidences were adduced and the statement under Section 313 Cr.P.C. was recorded,defence witness was also examined by the trial court. After considering the evidence adduced before it, the learned Trial Court convicted the appellants under Section 308. On the question of punishment, the accused-appellants claimed the benefit of first offender on the grounds that they are from the elite family and the only earning members in their family. Considering the same, the punishment as aforesaid was awarded to the accused vide judgment and order dated 31.01.2001. Accordingly, the appellants had preferred the present appeal.;