BHAIYALAL Vs. STATE OF U P

JUDGEMENT

(1.) APPELLANTS have filed this appeal against the judgment dated 19. 11. 1998 passed by the Sessions Judge, panna, in Sessions Trial No. 78/1997 convicting them under Section 302/34 of the Indian penal Code and sentencing them to imprisonment for life. Appellants No. 2 and 3 have further been convicted under Section 323/ 34 of the Indian Penal Code and sentenced to rigorous imprisonment for one month with fine of Rs. 200.

(2.) IT is to be noted that accused Mathur. a (acquitted) is "phoopha" (husband of father's sister) of Badda @ Devi Dayal (deceased)and appellants Bhaiyalal, Kaura and Manja are the sons of Mathura. Betu (PW1), Kallu (PW2), Durga (PW8) and the deceased are real brothers. Premabai (PW4) and vimlabai (PW5) are the wife and daughter of the deceased.

(3.) IN short, the prosecution case is that on 8. 8. 1997 at about 19. 00 hours, appellants along with accused Mathura went to the house of Badda @ Devi Dayal. Mathura called him out and admonished for his making false accusation against him of theft of buffaloes. Badda denied to have made any such accusation against him. This led to a hot altercation in the course of which mathura abused him and exhorted appellant Manja to beat Badda whereupon Manja dealt a lathi blow on his head. Appellant kaura dealt another blow on his head. It is alleged that, thereafter, appellant Bhaiyalal also dealt a lathi blow on his shoulder. Badda fell down. When Betu PW1 and Gaya tried to save him, appellant Manja dealt lathi blows to them also. Betu (PW1) along with injured Badda went to Police Station, dharampur and lodged the report (Exhibit pi) at 21. 00 hours. Head Constable Baijnath mishra (PW14) recorded the First Information Report and sent the injured persons for medical examination to Primary Health centre, Dharampur. Dr. M. S. Tomar (PW15) examined the injuries of Badda, betu and Gaya. He found one incised wound 7 cms. x 1 cm. x deep upto bone on the occipartional region of the skull of Badda. According to him, the injury was caused by a sharp cutting object. Injury report is Exhibit P 17. Dr. M. S. Tomar (PW15) found one lacerated wound on the left parietal re-gion of the skull of Betu (PW1) vide injury report Exhibit P 18 and one incised wound on the right parietal region of the skull of gaya vide injury report Exhibit P 19. Looking to the serious condition of Badda, Dr. M. S. Tomar (PW15) referred him to Primary health Centre, Ajaygarh for X-ray examination and further treatment. On the same day, Badda in unconscious state was admitted to the Primary Health Centre, Ajaygarh where, during the course of treatment, he expired at about 5. 00 a. m. on 9. 8. 1997. Dr. P. C. Shrivastava (PW6) sent intimation of his death to Police Station, Ajaygarh, whereupon a "marg" report (Exhibit P 5) was recorded.