POONAM SRIVASTAV,J. - (1.) HEARD counsel for the appellants and learned A.G.A. for the State.
(2.) THE instant criminal appeal has been preferred against judgment and order dated 20.7.1981 passed by VIIth Additional District and Sessions Judge, Agra, in Session Trial No.201 of 1977 State Vs. Chhotey and others. Accused/appellants Chhotey, Gangaram, Ram Khilari, Godhan, Roshan, Kumher, Jagannath, Hotam and Jagish are convicted under Section 307 read with Section 149 I.P.C. to undergo three years R.I. as well as under Section 323 read with Section 149 I.P.C. and sentenced to undergo one year R.I. Both sentences were directed to run concurrently. Allegation as unfolded in the F.I.R. is that on 19.6.1975 at sun rise while first informant Rakshapal Singh, his uncles Pal Singh and Sanwalia were making fences on Chabutara, all the accused armed with Lathi and accused Hotam and Jagdish armed with Farsa arrived at the scene of occurrence with an intention to cause death to the injured. Hotam assaulted on Pal Singh with his Farsa. Gangaram is also alleged to have struck Farsa blow with an intention to kill the injured. Remaining accused started giving Lathi blows. When Rakshapal Singh and Sanwalia raised alarm, Natthi, Chandan Singh, Ramdhar, Brahma Jeet, Ram Pati, Ram Nath and many others rescued victims from the attackers. First information Report was lodged by P.W.1 at case crime no.90 of 1975 under Sections 147, 148, 149, 307, 323, 324 I.P.C. Police Station Saiyan, Sub-district Kheragarh, District Agra. He was injured in the incident. There were two other injured, Pal Singh and Sanwalia. (1) Injuries of Rakshapal examined on 18.6.1975 at 12:45 noon. by Dr. Chhotey Singh, are quoted below: B/B Constable. M.I. : One black mole on the outer end of the Rt. Collar bone. Injuries:- (1) L.W. 1 ½ x ½ x scalp deep on the Rt. parietal region about 4 ½ about the Rt. ear. (2) Abrasion ¼ x ¼ inner side of the Lt. Wrist. (3) Contused abrasion 3/4 x 1/2 on the base and back of the Lt. little finger. (4) Contusion 3 x 1/2 on the inner and middle of the Lt. thigh. (5) Cont. 2 x 1/2 ? on the inner side and middle of the Rt. thigh. (6) Cont. 3 ½ x 1/2 on the Rt. side of the back. Injuries are simple caused by blunt weapon. Duration about half day. (2) Injuries of Pal Singh examined on 18.6.1975 at 9:35 a.m. by Dr. Chhotey Singh, P.H.C. are quoted below: B/B 1758 Ram Gopal. M.I. :- One black mole on the Lt. side of the chest lower part. 1. Incised wound 7 ½ x 1 x brain matter deep on the Rt. side of the forehead, extending to the Rt. side of the cheek. Rt. eye involved. Adv. X-ray. 2. Cont. 3 x ½ on the back of the Rt. chest. 3. Cont. 2 x ¾ x on the back of the Rt. thigh upper part. 4. Cont. 3 ½ x ½ 2 below injury no.2. 5. Cont. 2 x ½ on the outer side of the Rt. Leg middle part. Injury no. 1 kept under observation and adv. X-ray. Rest are simple caused by blunt object. Duration of all injuries fresh. Inj. No. 1st caused by sharp weapon and is dangerous to life. (3) Injuries of Sanwalia examined on 18.6.1975 at 12:30 noon. by Dr. Chhotey Singh, P.H.C. are quoted below: B/B Constable Methan Singh C.P. No.145. M.I. :- One black mole over the front and upper part of the Lt. thigh. Injuries:- (1) L.W. 1 ¾ x ½ x muscle deep on the back and lower 1/3rd of the Rt. forearm. Adv. X-ray. (2) L.W. 1 x ½ x muscle deep on the back and upper 1/3rd of the Lt. forearm. Adv. X-ray. Injuries kept under observation and advised X-ray. Duration about half day. Motive assigned was that three or four days prior to date of occurrence, accused Gangaram threw garbage on the open land of Sanwalia, which resulted in an altercation between Gangaram and Sanwalia. Accused with an intention to wreak vengeance attacked on Sanwalia and other family members. All the accused denied their participation in the incident and pleaded not guilty.
(3.) BESIDES , N.C.R. No.679, was lodged as cross report by Godhan Singh son of Kadam Singh, on 18.6.1975 at 5:55 p.m. at Police Station Kotwali, District Agra. Pal Singh son of Manwar Singh, Natthi and Pahar sons of Sanwalia were named in the said N.C.R. Information was that appellants in appeal and accused in N.C.R. are neighbours. There was some altercation between children of the two families, which resulted in Marpit by Lathi. (1) Injuries of Godan Singh examined on 10.6.1975 at 7:05 P.M. by Dr. A.M. Sukhoi, Emergency District Hospital, Agra, are quoted below: M.I. One black mole on the bridge of nose. Injuries:- (1) Contused abrasion (scabed) 1 x 1/2 x with swelling in an area of 2 ¼ x 1 on the back of outer side of Lt. forearm of Lt. wrist Adv. X-ray. (2) Contusion 1 x 1/2 x with swelling in an area of 2 ½ x 2 x on the back of Lt. hand Adv. X-ray. Both injuries are kept U.O. Adv. X-ray. Both injuries are caused by blunt object. Duration about half day old. X-ray of Godan Singh, who lodged N.C.R., was performed by Dr. Rama Shankar Sharma, X-ray report is quoted below:- The radiogram shows evidence of fracture of the lower end of the radius as marked no. callus formation is seen. M.I. of Sri Godan Singh one black mole on the bridge of nose. All the accused were charge sheeted, they were committed to court of Session. Charges were framed on 21.3.1979. Four witnesses of fact were examined on behalf of prosecution. PW-1 Rakshapal Singh and PW-3 Sanwalia are victim of occurrence while PW-2 Natthi and PW-4 Rampati are eyewitnesses. First Information Report was registered at 8:30 a.m. but no exact time of occurrence is mentioned either in the F.I.R. or in statement of any of witnesses. All of them mentioned time of occurrence at sun rise. Police station was situated at a distance of three miles. Since F.I.R. was registered at 8:30 a.m. it can very well be presumed that in the month of June, occurrence might have taken place about 5:00 to 6:00 a.m. F.I.R. exhibited as Ka-5 has been proved by PW-6 Ilam Singh. ;