Poonam Srivastav, J. - (1.) HEARD Sri. Satish Trivedi, senior advocate, assisted by Sri. Ajay Kumar Pandey, learned Counsel for the Appellants and learned A.G.A. for the State.
(2.) THE two appeals arise out of a common judgment passed by the II Ird Additional Session Judge, Jaunpur in Sessions Trial No, 172 of 1978. Five accused namely Vivek, Surendra and Udai Pratap including the present two Appellants Vijai Kumar and Vinod Kumar were sent up for trial. One more accused namely Bachanu is absconding. Three accused namely Vivek, Surendra and Udai Pratap have been acquitted by the Court below. Present two Appellants have been convicted under Section 304/149, I.P.C. and sentenced to three years R.I., under Section 324/149, I.P.C. and sentenced to one year R.I., under Section 323/149, I.P.C. and six months R.I. and under Section 148, I.P.C. one year R.I. All the sentences are directed to run concurrently. One person namely Kripa Shanker died in the incident and two persons are said to have received injuries, i.e., Mithai Lal P.W. 4 and Anand Kumar. The incident is alleged to have taken place on 9.8.1976 at 8.00 p.m. in Mohalla Husainabad, Police Station Kotwali, district Jaunpur. The F.I.R. was registered on the same day at 21.45 p.m. by P.W. 2 Ramdas. According to Ex. Ka -1, the prosecution story is that on 9.8.1976 Kripa Shanker deceased, brother of the first informant alongwith six other friends namely Mithai, Anand Kumar, Lal Bahadur of Mohalla Minapur and Ram Chander, Satish Kumar of Mohalla Qadarn Rasol were going for a dinner at the house of one Baburam Yadav situated in Mohalla Mianpur. They were going at about 8.00 p.m. when the incident took place. It is alleged that during the day time at about 2.30 p.m. some quarrel had taken place between Mithai P.W. 4 and accused Vijay Kumar regarding demand of money on the shop of Chandra Shekhar P.W. 6. The shop of Chandra Shekhar is situated on the main road near the Court. On the date and time of occurrence, while injured alongwith deceased were going for dinner, no sooner had they arrived a few steps ahead of the State Bank, in front of the house of Sri. Jaintri Prasad, the accused namely Vijay Kumar, Vinod, Vivek, Bachanu (absconder) and two unknown persons came out from the hiding. They were armed with knives and hockey -sticks. They surrounded deceased Kripa Shanker, Mithai, Anand Kumar and others and assaulted them. Witness Kamla Yadav, Rampati, Ram Kumar and a number of other persons reached on the spot hearing alarm. Accused Vijai Kumar is alleged to have caused knife blow on the chest of Kripa Shanker who fell down on the spot and became unconscious. The accused Vijai Kumar and Vinod are further alleged to have attacked with their knives on Anand Kumar and Mithai. The first informant Ramdas is also said to have reached on the spot hearing shouts and when the witnesses challenged, the accused ran away. Kripa Shanker while going to the hospital died on the way.
(3.) THE post -mortem examination was conducted by Dr. R.P. Rastogi P.W. 3 on 10.8.1976 at 2.25 p.m. The following ante mortem injuries were found on the person of the deceased vide post -mortem report Ex. Ka -2. 1. Incised punctured wound 3 cm. x 1.3 cm. x chest cavity deep on the left side of chest, oblique both margins clean cut, directed downward and inward. 5.7 cm. inner and above to the left nipple at 10 0' clock position. 2. Contusion abraded 4 cm. x 1 1/2 cm. top of left shoulder. 3. Contusion and swelling 10 cm. x 6 cm. left face cheek. The injured persons Anand Kumar and Mithai were medically examined by Dr. S. Alam in the same night between 12 and 2.45 a.m. Their injury reports Exts. Ka -9 and Ka -10 are proved by Pharmacist Ranjeet Singh P.W. 8.;