POONAM SRIVASTAV,J. - (1.) THE instant appeal was preferred by three appellants Badari, Phool Chand sons of Ram Kishun and Ram Tirath son of Thakur. Badari is dead and appeal stands abated in respect of appellant no. 1.
(2.) ARGUMENT has been advanced in respect of appellant nos. 2 and 3. They are convicted under Section 307/34 I.P.C. and sentenced to undergo 5 years R.I. in Sessions Trial No. 135 of 1979-State Vs. Badari and two others, Police Station Mubarakpur, District Azamgarh. Sri Rajiv Lochan Shukla appears on behalf of the appellants and A.G.A. represents the State. At the very outset learned counsel for the appellants has apprised the Court that there were cross cases of the same incident. Four persons including all the three appellants Badari, Phool Chand and Ram Tirath had received injuries. However, the cross case ended in an acquittal. Two persons namely Balihari PW-3 and Chhotak PW-2 have received injuries in the instant case. The occurrence is alleged to have taken place on 4.4.1977 at 6.30 A.M. The F.I.R. was registered at case crime No. 56 of 1977 on the same day i.e. 4.4.1977 at 8.15 A.M. at Police Station Mubarakpur, District Azamgarh.
(3.) THE prosecution case is that on the date and time of occurrence the first informant was running his tube-well and water was flowing from the Government Nali which is commonly used by accused as well. Each of the tube-well owners are allowed to use the Government Nali to flow the water to irrigate their respective fields but the drain is used one at a time. Two tube-wells cannot run simultaneously and make the water flow through the Government Nali. According to prosecution case as narrated in the F.I.R. the accused stopped the flow of water of the first informant and started their own tube-well and water was flowing to the fields of Badari which led to an altercation. The accused Badari assaulted Chhotak with spade, Phool Chand and Ram Tirath were armed with Ballam. All the three accused assaulted Chhotak causing injuries on his chest. Witness Madan, Indram, Gorakh and Balihari resident of Kukudipur tried to intervene. However, Chhotak fell down as a result of injuries and he was taken to the hospital. Balihari is also alleged to have received injuries in the said incident. The F.I.R. was lodged by PW-1 Bajjan. Prosecution examined Bajjan as PW-1, Chhotak PW-2, Balihari PW-3, Gorakh PW-4, Dr. F.B. Singh PW-5 and S.I. Brij Bhushan Singh PW-6 who investigated the case and submitted charge sheet. Injuries received by Chhotak was examined by Dr. F.B. Singh on 4.4.1977 at 8.30 A.M. and injuries of Balihari were examined at 5.15 P.M. on the same day. Both the injury reports are quoted below:- Examined Chhotak S/o Bajjan aged about 30 years, resident of village Sathiaon, P.S. Mubarakpur, Distt. Azamgarh on 4.4.77 at 8.30 A.M. brought by C.P. 709 Prabhu Narayan Singh P.S. Mubarakpur. M.I.: Trangular old scar 1 cm below Lt. lower eye lid over (?) Zygomatic bone of Lt. side of face. Injuries:- 1.Incised wound 2 cm x .8 cm x bone deep over lower part of sternum with fresh bleeding. Adv X-Ray of the part for confirmation of depth and injury to an (P.T.) internal organ. 2.Incised wound 1 cm x .3 cm x muscle deep .5 cm below the Rt. tibial tuberosity with frank bleeding over the ant aspect of Rt. leg. 3.Abrasion of 4 cm x 2 cm size over the back of Lt. elbow. 4.Incised wound 12 cm x 2.5 cm in the mid of the wound having tail on both sides. Direction of the wound is obliquly from above downwards. Site of wound is over the back just on the Rt side of midline at the level of T. 8 spine and extending from T. 8 to T. 10 spine for the depth of the wound. X-Ray advised and to confirm cutting of the vertebrae. Frank bleeding from wound is present. Stitch applied. Inj coramine 1 Amp 1 ml given. G.C. is poor. Pulse 100/mt, feeble, regular Pt is conscious. Resp. 18/mt. Duration:- of injuries fresh, caused by sharp edged weapon except injuries no. (3) which is caused by friction. Patient is referred to Distt. Hospital Azamgarh for X-ray and further treatment. Injuries are kept under observation. Sd/- Illegible. (Dr. F.B. Singh) (Seal) LTI of Chhotak attested Sd/- Illegible 4.4.77 (Seal) Examined Balihari S/o Bachanu aged about 40 years, resident of Sathiaon P.S. Mubarakpur, Distt. Azamgarh on 4.4.77 at 5.15 P.M. brought by Kamla Kant Pandey CP. No. 121 P.S. Mubarakpur. M.I.: Black mole on Rt. front of chest 4 cm above Rt. clavicle. Injury: (1)Abrasions 1 cm x .4 cm and .4 cm x .4 cm with traumatic swelling over the dorsal aspect of Rt hand in the middle. Injury is simple caused by friction. Duration about half day. Sd/- Illegible (Dr. F.B. Singh) (Seal) L.T.I. of Balihari attested. Sd/- Illegible. 4/4/77. ;