PANKAJ NAQVI,J. - (1.) This criminal appeal is preferred against the judgment and order dated 17.3.1986 by the 1st Additional Sessions Judge, Ghazipur in S.T. No.204 of 1984 convicting the appellants under Section 302/149 IPC and 307/149 IPC to life, under section 148 IPC to four years RI. All the sentences to run concurrently. 1. The case of prosecution unfolds as under:- A) Accused-appellant no.2 Sudarshan @ Mallu 6-7 months prior to the occurrence borrowed Rs.5 from the informant/P.W-1. P.W-1 made several demands for the return of the amount but the said accused kept on postponing the repayment on one pretext or the other. B) On 4.6.1984 at around noon while accused Sudarshan @ Mallu, Ram Balak, Ujigar and Munna were playing in the garden of one Ram Bachan Yadav, P.W-1 again demanded Rs.5 from Sudarshan @ Mallu but instead of returning the amount he started hurling abuses and also indulged in a scuffle. C) P.W-1 shared the details of the aforesaid incident with his brother Ramjee (deceased). P.W-1 alongwith the deceased went to the house of Sudarshan @ Mallu at around 5 same evening. The duo came across accused Deonath at the doors with whom they shared the details relating to the demand for return of the borrowed amount and the scuffle that ensued. Accused Deonath took an offence and while taunting at the duo about their money exhorted his son Sudarshan @ Mallu, Musafir, Ujagir, Ram Balak and Munna, already present in his house that they be eliminated. D) Accused Musafir armed with ballam and the others with lathi assaulted the deceased with their respective weapons, the deceased fell down infront of the platform abutting the house of one Govardhan but the assault continued. Surendra and Mangala of the same village arrived after hearing cries for help along with others who dissuaded the accused persons to spare the deceased. Accused Musafir, Ujagir and Ram Balak made an attempt to assault P.W-1 who ran for his life towards Harijan Toli but was eventually nabbed by the accused who again assaulted him with ballam and lathis, but with the arrival of co-villagers, the accused fled. E) P.W-1 came back to the scene to rescue his brother whose condition was critical and with the help of co-villagers he was rushed to the Government Hospital, Reotipur but succumbed to the injuries enroute. P.W-1 alleged that he was getting himself treated in respect of his injuries. F) P.W-1 on above allegations got a written report (Ex. Ka-1) scribed by one Santosh Kumar Rai and sent it to the police station concerned which became the basis for registering an F.I.R (Ex. Ka-3) as Case Crime no.68 of 1984 under sections 147,148,149,307 and 302 IPC at 8.15 P.M same day, against above named 6 accused persons.
(2.) The prosecution examined P.W-1 and 2 as eye-witnesses, rest was formal.
(3.) The accused alleged that it was the deceased armed with ballam and P.W-1 with lathi came at their doors and assaulted them wherein they exercised their right of private defence and in support thereof examined D.W-1/the doctor who examined the injuries of accused Sudarshan @ Mallu.;