SHEO LOCHAN AND OTHERS Vs. STATE

JUDGEMENT

(1.) THERE are four appellants before us. Kamta Singh has been convicted u/S. 326, IPC and sentenced to five years' R.I. His brother, Udai Bhan Singh, and his nephew Vijai Singh, have been convicted u/S. 324 IPC and sentenced to three years' R.I. A collateral of theirs, Sheo Lochan, has been convicted only u/S. 323 IPC and sentenced to one year's R.I. According to the prosecution case, Brahma Deo was passing the house of Kamta Singh and Udai Bhan Singh at about 10 a.m. on 16 -11 -1965, in village Apail, in district Ballia, and, when he had reached the Kharanja out side the Ahata or compound of the house, Raja Ram, the acquitted accused, challenged him. Then, Kamta Singh, Udai Bhan Singh, Vijai Singh, armed with spears, and Sheo Lochan, with a lathi, are alleged to have rushed out and struck Brahma Deo Singh and caused as many as 29 injuries to him. Kapil Deo, the brother of Brahma Deo, is alleged to have reached the place of occurrence while the attack was going on and to have attempted to protect his brother, but he was also struck with lathis. He is shown to have received 10 lathi injuries. As the condition of Brahma Deo was serious he was taken to Sukhpura where he was examined by Dr. Dina Nath (PW 9) who sent him to the district hospital at Ballia. Brahma Deo was examined by Dr. S.D. Rai (PW 3) on 16 -11 -1965 at about 4.15 p.m. A first information report could be lodged by his brother Kapil Deo (PW 1) only after getting Brahma Deo's injuries attended to. This, we think, adequately explains the delay in lodging the first information report at 00.02 a.m. on 17 -11 -1965.

(2.) THE prosecution case is supported by the evidence of Kapil Deo (PW 1), injured, and Subedar (PW 2), two of the three witnesses mentioned in the first information report. The third witness Ghani Singh is said to have become unwilling to depose anything more than that that he had helped to take away the body of the deceased from the scene of occurrence, although he was put down as an eye -witness in the first information report. Considerable emphasis was placed on this fact by the learned counsel for the appellants. But, we think that the failure to examine Dhani Singh is sufficiently explained by the fact that he was found unwilling to state anything more than that that he had helped to remove Brahma Deo from the scene of occurrence.

(3.) THE defence of the appellants was that Brahma Deo, deceased, and Kapil Deo had come armed with lathis to the house of Kamta Singh, abused him, said that he had given evidence against Brahma Deo and that he did not let Shiv Narain compromise a pending case. It was alleged that he also told Kamta Singh TO leave the field of Nandan. According to Kamta Singh, an altercation had, thereupon, ensued and that both he and Lochan were then attacked by the two brothers. According to his version, a number of villagers, including Jagdish Singh and Kuber, who had spears, had come to the scene of occurrence and attacked the two brothers Kapil Deo and Brahma Deo. The names of the assailants were given out as Ram Agyan, Ram Surat, Madho, Brahma Deo, Satya Narain and Ram Prakash.