SHYAM KISHORE SHARMA, J. - (1.) CR. Appeal No. 412 of 1989 (DB) filed on behalf of Anup Yadav, Lakhan Yadav and Company Yadav is against the judgment of conviction and order of sentence dated 29.07.1989 whereby the 9th Additional Sessions Judge, Munger in Sessions Case No. 930 of 1986 relating to Surajgarha P.S. Case No. 177(7) of 1986/G.R. Case No. 623 of 1986 whereby the appellant no. 1 Anup Yadav has been found guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and appellant nos. 2 and 3 have been convicted under Sections 324, 323 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for six months each. Other eleven accused persons who were put on trial along with the appellants were acquitted.
(2.) THE prosecution case relates to an occurrence of 28.07.1986 which resulted in killing of Medo Yadav and in the occurrence other persons who have been examined either as witnesses or have not been examined were acquitted. THE fardbeyan (Ext.1) of Asharfi Yadav P.W.7 resulted into a case under Sections 147, 148, 149, 323, 324, 307 and 379 of the Indian Penal Code. After death of one of the injured Section 302 of the Indian Penal Code was added. The fardbeyan was recorded by S.I. C.K. Mishra (not examined) on 28.07.1986 at 2.15 P.M. in State Dispensary Surajgarha, District-Munger wherein the informant P.W.7 stated that at preceding 11.00 A.M. his son Sunil Yadav P.W.5 was taking his cattle for grazing. It was objected to by Mahabir Yadav (since acquitted) saying that the cattle would not be allowed to be taken through the way. This obstruction resulted in verbal altercation upon which Mahabir Yadav (since acquitted) exhorted Sunil Yadav to test their strengths. Sometime, thereafter, Mahabir Yadav (since acquitted) with Bhala, Ayodhya Yadav (since acquitted) with bhala, Rajendra Yadav (since acquitted) with bhala, Lakhan Yadav (appellant no.2) with bhala, Brahmdeo Yadav (since acquitted) with bhala, Anup Yadav (appellant no.1) with bhala, Kamleshwari Yadav @ Kamla Yadav (since acquitted) with bhala, Mauji Yadav (since acquitted) with lathi, Bano Yadav (since acquitted) with lathi, Shankar Yadav (since acquitted) with lathi, Bhasso Yadav (since acquitted) with lathi, Bajrangi Yadav (since acquitted) with lathi, Company Yadav (appellant no.3) with lathi and Kamli Yadav (since acquitted) with lathi came shouting slogans and at the behest of Mahabir Yadav (since acquitted) Medo Yadav (deceased) was assaulted by Anup Yadav by bhala upon his head and thigh. Sunil Yadav P.W.5, Asharfi Yadav P.W.7 were assaulted by Appellant No.2 through bhala, Shyamsundar Yadav (not examined) was assaulted by Kamli Yadav by bhala, Asharfi Yadav P.W.7 was assaulted by Bajrangi Yadav (since acquitted) by lathi, Jago Yadav P.W.1 assaulted by Ayodhya Yadav (since acquitted), Medo Yadav (the deceased) was also assaulted by Appellant No.3, Mulho Yadav and Kalo Yadav were assaulted by Rajendra Yadav (since acquitted). The injured persons were carried for treatment to Surajgarha Hospital. Medo Yadav (the deceased) was referred to Munger Sadar Hospital where he succumbed to the injuries. The occurrence was on account of obstruction of passage to the cattle heads. The fardbeyan resulted into a case. The occurrence was investigated into and after investigation chargesheet was submitted. The case was being triable by the Sessions Court completion of paraphernalia where charges were explained. Charge under Sections 148, 302, 149 and 329 of the Indian Penal Code were framed against Ayodhya Yadav, Rajendra Yadav, Lakhan Yadav, Kamli Yadav, Company Yadav and others. Charge under Sections 147, 302/149 and 323 of the Indian Penal Code was framed against Bajrangi Yadav, charge under Sections 148 and 302 of the Indian Penal Code was framed against Anup Yadav along with others, Mahabir Yadav, Brahmdeo Yadav and Bhano Yadav were charged under Sections 148, 302/149 of the Indian Penal Code. Kamleshwari Yadav @ Kamla Yadav, Shankar Yadav, Bhano Yadav and Mauji Yadav were charged under Sections 147, 302/149 of the Indian Penal Code whereas 14 accused persons namely, Mauji Yadav, Bano Yadav, Shankar Yadav, Kamleshwari Yadav @ Kamla Yadav, Mahabir Yadav, Bhasso Yadav, Brahmdeo Yadav, Lakhan Yadav, Rajendra Yadav, Ayodhya Yadav, Bajrangi Yadav, Anup Yadav, Company Yadav and Kamli Yadav were charged under Section 380 of the Indian Penal Code. The charges were explained to the accused persons upon which they pleaded their innocence so the trial proceeded. The defence of the accused persons was of false implication on account of enmity from before. Their further defence was that the implication because a case was instituted by Kamli Yadav against the deceased Medo Yadav and others in which Medo Yadav and eleven other accused persons have framed unlawful assembly and they attacked with deadly weapons at 11.00 A.M. on 28.07.1986 which resulted into a protest. Their further defence was that there was no intentions at all to cause death and the injury to the accused persons were concealed. Asharfi Yadav and others were assailants causing injury to Nunuwati Devi, Parmeshwar Yadav, Ramanand Yadav, Anup Yadav and Shyamli Yadav. In order to prove its case the prosecution has examined nine witnesses, they are P.W.1 Jago Yadav, P.W.2 Mullho Yadav, P.W.3 Shiva Yadav, P.W.4 Dashrath Yadav, P.W.5 Sunil Yadav, P.W.6 Jugal Yadav, P.W.7 Asharfi Yadav, P.W.8 Dr. Rana Pratap Singh has conducted the post-mortem examination of Medo Yadav and P.W.9 Dr. Upendra Singh has treated the injured of the case. One formal witness Nand Kishore Choudhary ? a police constable was examined as court witness who has proved the inquest report (Ext.6) and Para-14 of the case diary. The injury reports of the injured have come on the record vide Ext. 3 to 3/5 and indoor register entry no. 3196 to 3202 have been brought on record through (Ext.4). Cadestral survey map of Mauja Salempur has been exhibited as (Ext.8).
(3.) THOUGH the defence has examined its witnesses which have been discussed in the judgment and which are available with the record but the paper book which has been prepared by the office of this High Court does not contain their depositions but perusal of the record exhibited that on the basis of materials made available through paper book it was appropriate to dispose of this appeal considering the pendency since 22 years for the appeal so the appeal has been disposed of after perusal of the paper despite the lacuna of the defence witnesses that deposition of the defence witnesses are not in the paper book. Before proceeding further it would be appropriate to note down the evidence of the doctor who has conducted the post-mortem examination of the deceased at 9.45 A.M. on 29.07.1986. The dead body of Medo Yadav was brought by police constable no. 446 Dhaneshwar Ram (not examined) and police constable no. 564 Shiv Nath Singh and Shiv Yadav (not examined). The doctor has found the following injuries upon the deceased: (I) Rounded bandaged over the head. On removal of the said bandage, the doctor found that the injury was lacerated wound 1?"x1"x skull cavity deep over the left side of the parietal bone. Further dissection revealed fracture on the parietal bone in an irregular shape as shown in the diagram of the post-mortem report. (II) Multiple bruises were found in numbers all measuring between 4?"x2" over the left shoulder region. One bruise on the left infra-scapular region measuring 5"x2". The death was caused on account of injury no. I which was the head injury involving brain substance and opinion of the doctor was that all the injuries were caused by hard and blunt substances may be by blunt portion of bhala and by lathi. The time elapsed since death was between 6 to 12 hours prior to the post-mortem. Injury No. I was sufficient to cause death. P.W.9 has examined the injured at 1.20 P.M. on 28.07.1986 at Surajgarha State Dispensary. The injured were Jugal Yadav, Medo Yadav, Sunil Yadav, Asharfi Yadav, Jago Yadav and Shyamsundar Yadav. The doctor has found, Jugal Yadav had a simple injury caused by hard and blunt substance within 12 hours at the time of examination. Sunil Yadav had injury of ?"x ?"x1 on the right forearm and it was caused by sharp pointed weapon like bhala his injuries was simple. Jago Yadav had swelling on the left little finger and abrasion on the same finger his injuries were caused by hard and blunt substances and by pointed weapon like bhala. Shyamsundar Yadav (not examined) had one lacerated wound 1"x?"x?" which was simple in nature and might have been caused by hard and blunt objects. Mullho Yadav had injury of 1?"x ?"x ?" over the head and one abrasion upon the head and his injuries were caused by hard and blunt substances and by sharp pointed weapon. Both his injuries were simple in nature. Asharfi Yadav P.W.7 had simple injury of ?"x?"x1" deep over the right leg and the injury was caused by sharp pointed weapon. In cross- examination this witness has stated that he has examined the injured between 12.45 P.M. to 01.20 P.M. on 28.07.1986. ;