JOKHAI Vs. STATE OF U P

JUDGEMENT

(1.) THE present appeal was preferred by 7 appellants who had been put on trial by the learned III Additional Sessions Judge, Mirzapur by being charged together under sections 147, 323/149 and 302/149 I.P.C. THE appellants were held guilty of committing offences they had been charged with and each of them was directed to suffer rigorous imprisonment for one year under section 147 I.P.C., six months under section 323/149 I.P.C. and also for life under section 302/149 I.P.C. During the pendency of present appeal, appellant no. 1 Jokhai, appellant No.3 Nachakau, appellant no.5 Kinka and appellant no.6 Sadhu were reported dead as such their appeals abated by orders passed on different dates, leaving the present appeal against three surviving appellants, i.e., appellant no. 2 Chaitu, appellant no. 4 Kishana and appellant no. 7 Dhorha.

(2.) THE prosecution case is contained in Ex.Ka-1, the written report of PW-1 Gomti, who happened to be the uncle of the deceased Rajmani alias Bihari. It was stated by the informant that on 1-2-1980 at about 8:00 in the night he and the deceased were irrigating their field, when deceased appellant Jokhai came and told PW-1 that he will take water into his own field. On this issue there was some altercation between the parties as also some scuffle between them which ended by the intervention of Vishwanath, PW-2 and Sikandar PW-3, who separated the two fighting persons, i.e., PW-1 and the deceased appellant Jokhai. It was stated by PW-1 that, he thereafter, alongwith the deceased nephew Rajmani son of Girja Prasad became engaged again in irrigating their fields. However, deceased appellant Jokhai went to his house to come back again to the field alongwith remaining appellants and started assaulting the informant PW-1 and the deceased, his nephew with lathi-danda, legs and fists. It was specifically alleged that the appellant Chaitu gave lathi blows to Rajmani as a result of which he fell down whereupon the deceased appellant Kinka mounted upon his chest and started assaulting him with legs while others continued giving blows with lathi, legs and fists. It was stated that the same set of persons, i.e., PW-1 Gomti, PW-2 Vishwanath and PW-3 Sikandar, intervened into it alongwith Hinchh Narayan, Jagannath and Surajbali (all not examined) and due to their intervention accused persons went away to their house. THE informant stated that Rajmani became unconscious and because, it was night the deceased could not be brought to the police station for lodging report and while he was being brought to the police station he died on the way, as such the dead body had been brought to the police station to file a written report.

(3.) THE defence of the appellant was that in fact the appellant Jokhai had been assaulted by the informant and the deceased on 1-2-1980 and for that the appellant Jokhai has lodged a report at the same police station half and hour prior to lodging of the report by PW-1. It was suggested to PW-1 that infact when appellant Jokhai was attempting to divert water into his own field for irrigation it was obstructed by the deceased and the informant by blocking the flow of water. It was further suggested that the appellant Jokhai removed the obstruction, whereafter the informant and the deceased started assaulting him and in defence of his person, appellant Jokhai wielded blows with lathi. This suggestion was given to PW-1 in paragraphs 74 and 75 which appears at page 55 of the paper book. Thus, it was admitted that appellant Jokhai had wielded lathi blows both on the informant and the deceased.