HARI NATH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Both the above appeals are directed against the judgment and order 22-4-1978 recorded by the Special Addl. District and Sessions Judge, Mirzapur, in ST No. 87 of 1974. This very judgment was challenged in two appeals - Crl. Appeal No. 1547 of 1978 at the instance of accused-appellant Dangar challenging his conviction and sentence, and Govt. Appeal No.2071 of 1978 by the State praying for interference in the quantum of sentence of this Dangar. Death of Dangar was reported and confirmed. Accordingly, an order was recorded on 18-8-1994 indicating abatement of these two appeals due to death of Dangar. Of the present two appeals, one is against conviction of the four appellants, Hari Nath, Vishwa Nath, Mahant and Shiv Nath in the aforesaid trial and against the sentence imposed on them under Secs. 304/149 IPC directing their rigorous imprisonment for 7 years (Crl. Appeal No.1246 of 1978). The other appeal (Govt. Appeal No. 2108 of 1978) is directed against the finding of acquittal of certain other accused persons in the same trial.

(2.) At the trial nine persons stood charged for different offences under Secs. 147, 148, 302 and 307/ 147 IPC on the basis of charge-sheet that was submitted in relation to case Crime No.97 of 1972 relating to P. S. Kachhawa, District Mirzapur. The FIR was drawn up on 18-11-1972 at 7 p.m. for an incident that had taken place on the same date at about 5p.m. One Ram Dular named nine persons in the FIR, had alleged that he was the chowkidar of village Khamaria, his brother Kanchan was going back after taking care of his cultivation when, near the arhar field of Parmoo, the nine persons named in the FIR attacked him. The FIR described what were the weapons held by each of them. These accused persons started assaulting Kanchan with their weapons, namely, ballam, gandasa and lathi. The victim raised an alarm which attracted the complainant and some others including Ram Harakh and Ram Baran as also one Kaurhia. When they rushed to the help of the victim, they too were attacked and assaulted. On their hue and cry Kallu Singh, Sahti, Hari Nath, Sant Lal, Jamuna and Bachchan ran to them. They had witnessed the assault by the accused persons by ballam, gandasa and lathi. On their intervention, the accused persons fled away. The complainant asserted that in self-defence they had also assaulted the accused persons. Kaurhia died, as a result of ballam injury, at the spot. The complainant further asserted that he had old rivalry with Basawan on account of land dispute. That was stated to be the motive behind the concerted attack on his brother Kanchan and on the eywitnesses. Injured Kanchan, Ram Harakh and Ram Baran were taken on charpoy and the dead-body of Kaurhia was also carried to the police station. The statement of Ram Dular was recorded in the dialect he had spoken.

(3.) It is noteworthy that a counter case bearing case Crime No.97A under Secs. 147, 148, 324 and 323 IPC was lodged covering the counter version on the statement of Dangar (now deceased) against Dular, Kanchan, Bachhan, Munni lal, Jamuna, Gaulak, Bhagirath, Sahti and Mahngi on the next day at about 5.30 p.m.