Ramesh Sinha, J. - (1.) The present criminal appeal has been filed by the three appellants namely Yogender Yadav son of Ram Pher @ Chulhai, Virendra Yadav son of Ram Pher @ Chulhai and Ram Pher @ Chulhai son of Kishun Yadav against judgment and order dated 11.04.1985 passed by IV Additional & Sessions Judge, Azamgarh in Sessions Trial No. 440/83 convicting and sentencing appellant no.1 under section 302 IPC for life imprisonment and convicting and sentencing the appellant nos. 2 and 3 under sections 323/34 IPC for one year and fine of Rs. 500/- each and he was released on probation for one year.
(2.) Appellant no.3 Ram Pher @ Chulhai has died during the pendency of the appeal and his appeal has been ordered to be abated by this Court vide order dated 01.08.2018. Hence, the present appeal survives with respect to appellant nos.1 and 2 only which is heard and decided by this Court on merits.
(3.) The prosecution case in brief is that Ram Pher @ Chulhai was a collateral of informant Duryodhan and there was a litigation going on between the informant and the accused persons for an agricultural land on account of which the relation between them was not cordial. On 01.08.1983, at about 12 noon, the accused Ram Pher @ Chulhai had brought his buffalo and left her in the agricultural field of the informant for grazing due to which the mango grove of the informant got damaged. Sister in law of the informant namely Smt. Dhanesri Devi driven out the buffalo and complained about the same to accused Ram Pher @ Chulhai who started abusing her. When she objected to the abuses given to her by accused Ram Pher @ Chulhai, he assaulted her with lathi. On the alarm raised by Smt. Dhanesri, the informant along with his nephews Siddhu and Mahender son of Tilak Dhari rushed towards the place of occurrence. On seeing the complainant party coming towards his place, accused Ram Pher @ Chulhai exhorted and uttered for bringing lathi and spear. Accused Ram Pher @ Chulhai was armed with lathi and his two sons were armed with lathi and spear who assaulted the complainant party. The informant and the witnesses tried to save themselves from the assault of lathi and also screamed loudly. On hearing the noise, Gomti son of Baldev Yadav, Jagdev son of Sushihal, Kurmi Chandbali son of Dhamu Kurmi, Harinath son of Pratap Yadav, Ram Samujh son of Chander Yadav and other villagers arrived at the place of occurrence. Accused Yogender assaulted Siddhu (nephew of the informant) in his abdomen by his spear with the intention to kill him. After receiving the injuries, Siddhu fell down. The witnesses tried to reconcile the parties. Smt. Dhanesri and Mahender also sustained injuries of lathi on their person. The nephew of the informant Siddhu who suffered injuries of spear in his abdomen was taken on a cot to the police station but he died on the way. On 01.08.1983, a report was written by Jagan Yadav son of Vasudev and the same was submitted by the informant Duryodhan at police station Raunapar, District Azamgarh for necessary action.;