KAPIL MUNI Vs. STATE

JUDGEMENT

(1.) FATHER Rama Shankar(A1) and his two sons Kapil Muni(A2) and Kapil Deo(A3) are aggrieved by the their conviction under Section 326 I.P.C. and imposed sentence of six months RI, recorded by the IIIrd Additional Sessions Judge, Basti in Sessions Trial No. 150 of 1974, State Vs. Kapil Muni and others, vide impugned judgment and order dated 27.07.1976, and therefore, have knocked the door of this court, u/S 374 (2) Cr.PC. by preferring instant appeal, questioning their aforementioned conviction and sentence.

(2.) PROSECUTION case, in nutshell, as is contained in written F.I.R. exhibit Ka-1 and Chick F.I.R. Ext. Ka- 8 indicate that since last more than a decade, flowing of drainage water was an apple of discard between the families of informant Durga Prasad Pandey, r/o village Hirdayajot, P.S. Kotwali, District Basti,PW1, and his next door neighbor A1,who both were collaterals. A1 wanted drain to flow from the plot and land of PW1 because of which dispute existed. Motivated by aforesaid discard, on 06.12.1972 at 5/6 a.m., appellants A1 to3, were erecting a mud wall obstruction adjacent to the Dhari of PW1, which was objected to by Smt. Kalpa Devi, informant's mother, on which A1 to3 started abusing her. Commotion attracted PW1, his brother Ram Keval, wife Shobha Devi, elder sister-in-law(Bhabhi) Sona Devi at the scene , who all challenged the appellants by questioning as to why they were digging wall and abusing as well, on which A1 instigated, and then he alongwith others A2, A3,Shiv Shankar , Lallu, Lallan, wife of Rama Shankar, Vishwanath, Radhey Shyam, Ghanshayam, arrived at the scene and started assaulting prosecution side with Lathi, Ballam, Spade, bricks and stones. Informant and his family members raised alarm which attracted witnesses Ram Lal Koiri, Dularey Koiri, Kanahai, Deen Dayal Tripathi, Ram Shabd,Ram Ashish and many others at the scene of the incident. Spotting witnesses, accused sprinted away from the occurrence spot. Informant Durga Prasad Pandey PW1 thereafter scribed F.I.R. Exhibit Ka-1, and after covering a distance of 4 miles got it registered at PS Kotwali at 08.15 a.m. same day, as crime no. 804/72, u/s 147, 148, 149, 323, 307 I.P.C. vide chik FIR Exhibit ka- 8, prepared by head constable Laxmi Shankar Dubey, PW4, who had also penned down G.D. entry Exhibit ka-9.

(3.) THE appeal was filed in this Court in the year 1976 and when it was called out for hearing, nobody appeared from the side of the appellants to argue the appeal on their behalf and hence, not to further delay final hearing of appeal, and in consonance with apex court decision in State of U.P. versus Bani Singh: AIR 1996 SC 2368, Sri Devendra Mohan Singh was appointed amicus curie to argue the appeal on behalf of appellants.