ANANT KUMAR,J. - (1.) Initially this appeal has been filed against the judgment and order dated 26.08.1982 passed by IX Addl. Sessions Judge, Sitapur, convicting the appellants under Sections 147/ 323/ 149/ 304 IPC and sentencing to each of them for R.I. of 1 year under section 147 IPC, 1 year under Section 323/149 IPC and 5 years u/s 304/149 IPC (to run concurrently) in Session Trial No.337 of 1980 by following accused persons :- 1. Moharram Ali, 2. Subedar Khan, 3. Sirtaj Khan, 4. Rajjak Khan, 5. Jabbar Khan, 6. Maqbul Khan, 7. Naurang Khan, 8. Gobrey, 9. Nazir Hasan, 10. Phusu and 11. Puttu. Vide this Court's order dated 1.8.2016, the appeal against Appellant Nos.1,3,4,5,7,9,10 and 11 has been abated and vide this Court's order dated 16.10.2019, appeal against Appellant No.2 has also been abated. So now this appeal survives only against Appellant No.6 Maqbul Khan and Appellant No.8 Gobrey. The appellant have been convicted under Sections 147/ 328/ 149/ 304 IPC.
(2.) Brief facts necessary for disposal of this appeal are that the complainant Nisar Khan S/o Sarfaraj Khan R/o Village - Khirihi, Police Station - Tambaur, District - Sitapur had submitted a oral information before the police concerned to the effect that in front of his house there is a Well of Moharram Ali S/o Ali Hussain, however the said Well is used for drawing water by the complainant and his family members as well. There was some dispute between the son of the complainant and the son of Moharram Ali, due to which Moharram Ali restrained the complainant and his family members from taking water from the said Well. However, the matter was pacified in the evening. When the complainant went to draw water from the said well, accused Moharram Ali having Lathi in his hand called his brother Subedar and stated that the complainant had again come to draw water, so let us see him, whereupon the brother of Moharram Ali, namely, Subedar Khan, his son Maqbul Khan, Rajjak Khan, Sirtaj Khan S/o Asgar Khan, Jabbar Khan S/o Rajjak Khan, Nausa Khan S/o Majhar Khan and Mobrey Khan S/o Nausa Khan and Nazir Hassan Khan S/o Mehdi, Jhaggu Khan S/o Magal Khan, Puttu S/o Chhabi Lal Goriya helping each-other came with Lathi in their hands and started beating and cordoned the complainant and his family members and inflicted injuries with Lathi. When the complainant raised alarm, his real brother Tulla Khan, cousin brother Bechan Khan and one Ahmad Khan came to his rescue. All were beaten with Lathi. When they raised alarm, witness Saddique Khan S/o Rahaf Khan and Wiswanath S/o Chamar Prasad Gosai, Nirhau Khan S/o Ram Chanran Bhurji and other co-villagers came there and restrained them, then the accused persons left the scene of occurrence. It was further stated that due to the incident, Tulla Khan, Bechan and Ahmad Khan sustained injuries of Lathi. Ahmad Khan became unconcious. After arranging a bullock cart, Ahmad Khan alongwith other injured were taken to police station for lodging the F.I.R. On this information, chick F.I.R. was prepared. As per F.I.R. the incident had taken place on 19.10.2017 at about 8.45 and entry to this effect was made in GD report No.13 on 20.10.1977 at about 8.40 being Case Crime No.173, U/s 147/ 323/ 304 I.P.C., Police Station - Wambaur, District - Sitapur. Injured persons were sent for medical examination. Their injuries were examined on 20.10.1977 in the evening. They were having following injuries: 1. A lacerated wound on the medial side of right forearm size 4 cm X 1/2 cm X skin situated one cm above the ulnar pronian. 2. An abrasion on the top of the skull size 1 1/2cm X 1/2 cm situated 12 cm above the lt ear. Both above injuries are simple in nature caused by blunt weapon duration one day. Nisar Khan 1. A lacerated wound on the scalp 8 cm above the right ear size 1/2 cm X 1/2 cm. Above said injury is simple in nature caused by blunt weapon. Bechan Khan 1. A lacerated would on the left eye brow size 4cm x 1 cm x skin deep. 2. A lacerated wound on left forearm size 1 cm x 1 cm situated seven cm below the left elbow. Both injuries are simple in nature caused by blunt weapon Duration one day. Initially this F.I.R. was lodged under Section 147, 323, 308 I.P.C. During treatment the injured Ahmad Khan had died, then this case was converted under Section 304 I.P.C. and the body was sent for postmortem. Inquest of the deceased was done on 20.10.1977. As per postmortem report the following injuries were found : 1. There is fracture of cranium diving it is anterior and posteriour half that is from one ear to another ear. 2. The liner fracture has ended in splinters (Small) on both side i.e. bone has turned into small splinter on both side above the ear. The splintered bones are lower border of pariental and temporal bones. Cause of Death - The death was caused by the head injury result in intracravial hemorrhage. Intra thecal as well as extra thecal. Investigation proceeded. The investigating Officer visited the scene of occurrence and prepared site plan and recorded the statement of witnesses. After investigation chargesheet was filed against the accused persons. Since the case was triable by the Magistrate, the same was committed to the Court of Sessions by the Court of Additional Munsif, Sitapur and charges were framed against accused persons under Sections 147, 149, 323 and 304 I.P.C. The chargesheet were read-over and explained to the accused in Hindi. They denied their guilt and claimed to be tried.
(3.) During trial, on behalf of prosecution PW.1-Nisar Khan, PW.2-Tulla Khan, PW.3-Vishwanath, PW.4-Siddhiq Khan, PW.5-Shiv Pratap Singh, S.I., PW.6- Gayasuddin Beg (Constable) PW.7- Dr. H.K. Kulshreshtha were examined.;