JAGDISH PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) This Criminal Appeal is preferred against the judgement dated 10.02.1982 passed by 4th Additional Sessions Judge, Ghazipur in Session Trial No. 182 of 1980 convicting the appellant no. 1 to 3 under section 307/34 I.P.C. and sentencing each of them to three years' R.I. and appellant no. 4 under section 323/34 I.P.C. and further releasing him on probation.

(2.) The brief facts which give rise to this appeal are that the accused Jagdish Pandey and Dadhichi Pandey are real brothers. Accused Brijnath Pandey and Dayanand Pandey are also real brothers and cousin of Jagdish Pandey and Dadhichi Pandey. Jagdish Pandey with his brother Dadhichi Pandey lives separately from their cousin brothers. The accused Brijnath Pandey and Dayanand Pandey live separately in one house and the two portions in the house under their occupation have two separate entrances towards north. In front of the house towards north after their sahan lies a flour mill belonging to the injured Achhelal which he has installed in a chhappar roof. To the east of the flour mill is a four feet wide lane and to the east of that lane is the house of P.W. 4 Bhairon Prasad, the nephew of injured Achhelal. On the fateful date of incident prior to the incident, there was heavy rain fall and even at the time of incident it was drizzling and as a result of the rain fall, water accumulated in the lane to the east of the flour mill of the injured Achhelal. As result of water logging, the water was percolating in the eastern wall of the flour mill. In order to remove obstruction in the flow of water, Achhelal with a spade started cleaning the course of flow of water whereupon accused Jagdish objected against it and a wordy duel followed. In the meantime the rest of the three accused Dadhichi Pandey, Brijnath Pandey and Dayanand Pandey also arrived there and they hurled abuses on the injured Achhelal and out of them accused Dayanand also pelted brick bats and accused Jagdish caught his neck from front and accused Dadhichi from backside and on the exhortation of accused Brijnath Pandey, they both compressed his neck. In the meantime accused Brijnath Pandey too with a view to give a blow to Achhelal raised a spade but the witnesses who arrived on the spot caught hold of him. As a result of compressing of neck of injured Achhelal, Achhelal fell on the ground and became unconscious. He was taken to P.H.C., Jakhania, where he was admitted and was medically examined on the very day of the incident, Bhairon Prasad, nephew of the victim Achhelal went to P.S. Sahibabad which is about 4 kms. from the place of incident and lodged a written report. A chik report was also prepared on the basis of F.I.R. and a case under section 308 I.P.C. was registered against accused persons. After recording the statement of witnesses and inspection of disputed site, the Investigating Officer submitted chargesheet against the accused persons under section 308 I.P.C. In order to prove its case, prosecution examined six witnesses which includes P.W. 1 Dr. T. N. Tripathi, P.W. 2 Achhelal (injured), P.W. 3 Ibrahim witness of fact, P.W. 4 Bhairon Prasad witness of fact as well as informant of the incident. P.W. 5 Head Constable Ram Lal and P.W. 6 S.I. Suraj Bal Singh.

(3.) Accused were examined under section 313 Cr.P.C. but they did not lead any evidence in their defence.