KINNO ALIAS RAJENDRA Vs. STATE OF U P

JUDGEMENT

(1.) CRIMINAL Appeal No. 3267 of 1979 has been filed by Kinno alias Rajendra and Shanker alias Shankaria against the Judgment and order dated 5.12.1979 of 3rd Additional Sessions Judge, Mathura in S. T. No. 37 of 1979 of convicting the former under Section 304, Part 1 J.P.C. and sentencing him to seven years R. I. and the latter under Section 304 Part II read with Sections 34 and 323, I.P.C. and sentencing him to four years R. I. and one year respectively under the two counts. Two other persons namely Har Swarup and Hardan were also tried alongwith the appellants and all of them were charged under Sections 302, 302/34, 394 and 323, I.P.C, but they were acquitted. The CRIMINAL Revision No. 2059 of 1979 has been filed by Gopal Prasad (complainant) against the acquittal of the accused.

(2.) THE case of the prosecution as set forth in the F.I.R. in brief, is that deceased Prem Pal was coming alongwith his mother Smt. Katori to his village Wahadin and when he arrived near the well, he saw the mare of Kinno accused grazing in his field. When he was trying to drive out the mare, all the four accused arrived and abused him and said why he had driven out the mare. THEreafter, Kinno armed with a Pharsa and the remaining armed with lathis assaulted him. Smt. Katori raised an alarm, on which Har Swarup-accused removed some ornaments which she was wearing. THE complainant Gopal Prasad also rushed to the spot after hearing the alarm and Shanker also assaulted him with Lathi. THE injured were taken to the district Hospital and thereafter a written first information report of the incident was lodged by Gopal at 11.25 p.m. on 16.7.1978 at P. S. Kotwali which is (six) kms. from the place of occurrence.

(3.) THE accused in their statement under Section 313, Cr. P.C. denied the prosecution case and stated that the incident did not take place on account of grazing by mere but Marpit took place in the field of Kumhar Singh over the cattle and Gopal had assaulted them. THEy examined two doctors and Dwarika Prasad Head Constable as defence witnesses.