BIRBAL Vs. STATE OF U P

JUDGEMENT

(1.) S. I. Jafri, J. Birbal, Nohar Dom sons of Buchcha, Halua Dom son of Birbal, residents of Mohalla Digiya Donkhana, police station Jaitpura, Varanasi and Narottam Dom son of Mohan, resident of Senpura, police station Chetganj, Varanasi have filed this appeal against their conviction under Section 304 Part II, I. P. C. and 323 I. P. C. and sentence of ten yars R. I. and six months' R. I. under the afore -mentioned sections respectively passed by Sri J. P. Singh VI Additional Sessions Judge, Varanasi by his judgment and order dated 30. 5. 1979 in Sessions Trial No. 291 of 1976.

(2.) THE case of the prosecution is that on 29. 9. 1976 the Dasawan ceremony of the grand mother (mother's) mother of Bhola P. W. 2 was held. He had given a feast to his biradari on that day. About 100 guests had taken their meals upto 5. 00 p. m. on that day. However, 10 or 12 more persons were waiting for the food to be served to them. At that time the maternal grand father of Bhola asked him to call Birbal and others for taking their food. Bhola went to call Birbal at his house and requested Birbal to go with him for taking his food. Co-accused Nohar, 'halua and Narottam were also present there with Bhola. Birbal asked Bhola to bring their food at that particular place. Bhola retorted that if he was Lat Saheb, then he would have brought their food to that place. Birbal on hearing the reply insti gated his companions to assault Bhola. Birbal caught hold of Bhola and started beaming him and also struck him with stone. THE rest of the accused belaboured Bhola with their hands. On the alarm raised by Bhola, number of persons including Jang Bahadur P. W. 1, Panna Manohar and his mother reached the scene of occurrence and they stopped the accused from beating Bhola. In the mean time Mewa, the father of Bhola also arrived there and tried to intervene and he took Bhola in his lap. THEreupon, the accused persons also assaulted Mewa. Birbal struck Mewa on his head and Mewa fell down. Birbal asked his companions to kill him whereupon Narottam struck a stone on the head of Mewa. THEreafter, Bhola went to police station and lodged a first information report and case under Sections 323 and 324 I. P. C. was then registered against the accused Mewa was sent to the Hospital for medical examina tion along with Bhola. Panna and Manohar remained there at the police station. When Bhola reached the hospital he was informed that his father had succumbed to his injuries. THEreafter, on 29. 9. 76 at 8. 30 p. m. on receiving the information regarding the death of Mewa, the case under Sections 323 and 324 I. P. C. was converted to one under Section 304 I. P. C. in Crime No. 207 of 1976 against the appellants in the general diary of the police station.

(3.) CHARGE-sheet was submitted against the accused after investigations. The accused pleaded not guilty to the charge. Birbal accused stated that Bhola had come to call him for taking food and he had replied that the time was not proper for taking food and told him that he would take his food after some time. Thereupon Bhola said that he had become Lat Saheb. Bhola then abused him. Bhola Mewa, Dafedar, Nanhan, Khatakoo Chhotak, Gopal and others had then assaulted him and others. They had belaboured his wife and sister. He also stated that Mewa had fallen down on the ground as he was over drunk and that he thus received injuries on his head.