SUNDER AND OTHERS Vs. STATE

JUDGEMENT

(1.) SUNDER , his two brothers Sobaran and Umrai and Umrai's son Jhandu have come up in appeal against the judgment dated 8 -7 -1967, passed by Shri Basudeo Lal Srivastava, Sessions Judge, Shahjahanpur, convicting them Under Sections 302, 325 and 323 IPC each read with Section 34 IPC and sentencing them to imprisonment for life Under Section 302 IPC, to three years' rigorous imprisonment Under Section 325 IPC and to one year's rigorous imprisonment Under Section 323 IPC concurrently. Curiously enough he has sentenced the Appellants both Under Sections 325 and 323 read with Section 34 IPC in respect of the grievous and simple injuries inflicted on PW 4 Sita Ram in furtherance of their common intention. It was not necessary for the learned Sessions Judge to have separately charged the accused also for the simple injuries caused to PW 4 Sita Ram after he had charged them Under Section 325 read with Section 34 IPC.

(2.) IT is not in dispute that the incident in question took place on 22 -11 -1966 near the field of the deceased, Sheo Deo and his brother PW 4 Sita Ram between 9.00 and 10.00 in the morning, at a distance of about 1 1/2 miles from the police station, in village and police circle Paraur. All the Appellants are also residents of village Paraur like Sita Ram. During the incident both Sheo Deo and Sita Ram were beaten with lathis due to which both became senseless. They were carried to the police station where the FIR was lodged by Makhanna, daughter of Sita Ram, the same day at about 11 A.M.

(3.) IT is also not in dispute that during the incident Appellant Sunder received injuries due to a lathi having been wielded by deceased Sheo Deo. These injuries have been proved by DW 1 Dr. S.P. Banerji who examined Sunder in jail on 24 -11 -1966 at 10.50 A.M. Though he described the injuries as five in number, it appears that actually there were four injuries all contusions. The injury which the doctor described as No. 2 appears to have been a swelling resulting from injury No. 1. Injury No. 1 was found to be grievous because due to that injury the lower tip of the fibula bone in the right leg had fractured. The rest of the injuries were simple. As is apparent from the cross -examination of Dr. Banerji, he could not deny the prosecution suggestion that inspite of this injury the Appellant could have limped away at a fast rate while the injury was still fresh. This question obviously was put to show that due to the said fracture sustained by Sunder the prosecution case that the Appellants had run away from the place of the occurrence, could not be doubted. None of the other Appellants received any injury.