VISHESHWAR Vs. STATE OF U P

JUDGEMENT

(1.) This appeal arises out of judgment and order dated 4.5.1981 passed by Session's Judge, Fatehpur in S.T. No. 175 of 1981, State Vs. Visheshwar and another under sections 304-II/34, 323/34 I.P.C. relating to P.S. Kishunpur, District Fatehpur. By the impugned judgment, learned Session's Judge has convicted both the appellants under section 304-II/34 I.P.C. and 323/34 I.P.C.and has sentenced them to five years RI on the first count and one year RI on the second count. Both the sentences were directed to run concurrently.

(2.) Stated briefly, prosecution allegations against the appellants were that on 18.12.1978 at 10 A.M., for the reason of constructing a pedestal (chabutara), Mahadev father of informant Gajraj was assaulted with lathi by the appellant accused. When Mahadev's elder brother Gaya Prasad intervened to save his younger brother, he too was belabored. When informant Gajraj (P.W. 1) tried to save his father and elder uncle, he was also beaten up. This incident was witnessed by Dulariya, mother of informant, Maikee his wife, Bhundi, Nankauna, Rameshwar and many other co-villagers. After arranging for a bullock-cart, informant carried the injured to the police station Kishunpur at a distance of 9 miles and there dictated an oral FIR, which was registered as crime no. 138, under sections 323, 504, 506 I.P.C. the same day at 5.30 P.M. Subsequently, Mahadev father of the informant expired on 19.12.78 at 7 A.M., while he was being carried to Fatehpur for better management of his injuries and consequently the crime was converted under section 304 I.P.C.

(3.) Usual investigation ensued and ultimately Investigating Officer laid charge sheet against appellants accused.