- (1.) THE appellant Nos. 1 to 3 were tried for the charges under Sections 323, 325 and 109 of the Indian Penal Code and were found guilty and convicted. However, they have been released on probation and ordered to execute the bonds for keeping peace for the period of one year. Appellant No. 4 has been found guilty for the offence punishable under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/ - and in default to undergo rigorous imprisonment for six months.
(2.) THE prosecution case, in short, is that on 11.3.1993 while the informant was grazing his cattle, the co -villagers, Keshri Kant Mishra, appellant No. 3, Sarju Mishra, Shri Pati Mishra, appellant No. 2, Awadh Pathak @ Awadhpati Pathak, Appellant No. 1, Kishun Kahar, appellant No. 4 started hurling abuses on him; when the informant objected, Keshri Kant Mishra exhorted Kishun Kahar to kill him. Thereupon, Kishun Kahar gave a 'garasd blow on the head of the informant. The informant sustained injuries and fell down. Six other accused persons then assaulted his nephew with 'Lathi on different parts of the body. The informant raised alarm, whereupon the co - villagers, namely, Kailash Mishra, Ravindra Mishra, Brij Kishore and Kan -haiya Mishra rushed to the spot, intervened and rescued them. The reason for the alleged occurrence was said to be the enmity and litigation between the parties. There was a case against the accused under Section 307 of the Indian Penal Code pending in the Court below and they were mounting pressure upon the informant to withdraw the case. On the basis of the said report, the case was registered under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code. The case was investigated by the police. After completion of the investigation, police submitted charge -sheet under Sections 147, 148, 149, 323, 324, 452 and 307 of the Indian Penal Code. However, the trial Court framed charges under Sections 307 and 149 of the Indian Penal Code against the appellants. Charges were not framed under Section 323 or 235 or 109 of the Indian Penal Code were framed against the accused persons.
(3.) THE prosecution altogether examined eight witnesses. PW 1, Anil Kumar Mishra according to the FIR is a relative of the informant and is not an eye witness. PW 2, Pradeep Kumar Mishra stated to have reached at the place of occurrence after hearing the alarm PW 3, Shankar Mishra, also reached to the spot after the alleged occurrence. PW 4, Balldeo Mishra, is the informant as well as the victim. PW 5, Bihari Ram, is a formal witness and he has proved his signature in the fardbeyan (Ext. 3). PW 6, Champa Banwar, is also a formal witness and he has proved the signature of the Officer -in -charge (Ext. 4). PW 7, Dr. Nityanand Mandal, is the doctor, but he has not prepared the injury report. PW 8, Dr. Nand Kishore Jaiswal, who is said to have prepared the injury report, on examination of PW 4, Baldeo Mishra.;