GAYA PRASAD Vs. STATE

JUDGEMENT

(1.) THIS is an appeal on behalf of Gaya Prasad, Ram Sundar, Ram Ratan and Sheo Shankar, who have been convicted by the Additional Sessions Judge of Partabgarh and have been sentenced to seven years' rigorous imprisonment under Section 307 and to one year's rigorous imprisonment under Section 323, Penal Code.

(2.) THE case for the prosecution was that there was long standing enmity between the appellants on one side and Rameshwar and his son Bindeshwari on the other side so much so that the appellants and Rameshwar had ceased to be on speaking terms. Ultimately a complaint was filed by Ram Ratan and Gaya Prasad against Rameshwar in the Court of a Magistrate in Partapgarh. 11.4.1951 was fixed for the hearing of this case at Partabgarh. The parties are residents of a place about 22 miles away from Partabgarh, and there was a lorry service which touched Derwar bazar and persons of the village, to which the. parties belonged, used to catch the lorry plying between Derwa bazar and Parbtagarh at Derwa which was at a distance of two miles from the place where the parties resided. Mangla Prasad, son of Rameshwar, was sent early in the morning of the 11th of April by Rameshwar to Derwa bazar to arrange for seats for them for Partabgarh. At about 7 a. m. Bindeshwari and his father Rameshwar were going to the lorry stand and on the way passed in front of the house of Gaya Prasad. When Bindeshwari arrived near the house of Gaya Prasad, it was alleged by the prosecution, that the appellants and two others, who have been acquitted by the Sessions Judge, came out of the house of Gaya Prasad and started beating Bindeshwari. One of them was armed with a spear and the others had lathis in their hands. Rameshwar, who was some 50 paces behind Bindeshwari, ran up to the rescue of Bindeshwari on seeing the assault. He was also assaulted by the appellants and their two companions with spear and lathis. Rameshwar fell down and the assailants continued to strike him even after he had fallen down. It is also alleged that the assailants shouted that he should be killed. An alarm was raised by Bindeshwari and Rameshwar and some persons who were near about ran up when the assailants left the place. Rameshwar was taken on an ekka to the police station Jethwar which was at a distance of four or five miles from the place of occurrence. A report was lodged by him at 8. 45 a. m. The details of the incident were mentioned in the first information report and the names of eight persons were mentioned as witnesses besides others who were not named. Investigation was taken up by the police and the Sub Inspector visited the place of occurrence. Ultimately six persons, including the four appellants, were sent up for trial.

(3.) THE defence of the appellants was that Rameshwar and Bindeshwari had been assaulted by some unknown persons at a distance from the house of Gaya Prasad and that as the assailants could not be known, Rameshwar implicated the appellants on account of enmity. The Sessions Judge found the case established against the appellants and convicted them as mentioned above. He entertained reasonable doubt about the complicity of two of the six accused and acquitted them. The appellants have now come up in appeal.