BODHAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Bhura and his two sons, Bodhan and Manrakhan, Lohars of village Biharwan, district Banda, against their conviction under Secs.304(ii) and 323, Indian Penal Code, and various sentences of imprisonment passed upon them by the leaned Sessions Judge.

(2.) On 28 August 1945, about two Gharis after sunrise, she buffaloes belonging to the appellants when let loose began to fight with the cattle of Ram Prasad and his relations. In consequence of this, admittedly, Ram Prasad and his two nephews, Sheo Ghulam and Ram Ghulam on the one side and Bhura and his two sons on the other, indulged in exchange of abuses. It led to a scuffle and a lathi fight ensued with the result that Ram Prasad received some injuries as the result of which his skull was fractured and he succumbed to his injuries at his house on the same evening, about 8 P.M. Sheo Ghulam and Ram Ghulam are also said to have received injuries. Sheo Ghulam's injuries were examined by the Doctor whose report is on the record, but there is no medical testimony with regard to the injuries of Ram Ghulam. Of the appellants, Bodhan undoubtedly received a number of injuries and there is medical evidence to that effect. Manrakhan alias Pulao absconded and when he surrendered on 20 October 1945, no marks of injuries were traceable on his person. The defence in substance was to the effect that lathis were plied by the appellants in exercise of their right of private defence. In support of the prosecution case, the leaned Sessions Judge had the testimony of Sheo Ghulam, Ram Ghulam, the two nephews of Ram Prasad deceased, and Ram Bahori and Shital P.Ws. The defence produced a witness, named Ram Bhawan Singh, the Mukhia of a certain village other than village Biharwan.

(3.) The leaned Sessions Judge has given very good reasons for rejecting the testimony of Ram Bhawan Singh who was merely a casual witness and was not produced before the police. On the rejection of the testimony of the solitary defence witness Ram Bhawan Singh, there is no evidence left in support of the defence version. Of the four eye-witnesses produced by the prosecution two, namely Sheo Ghulam and Ram Ghulam, are the nephews of Ram Prasad deceased. On the evidence both these persons must be considered to have received some injuries as the result of the lathi fight. Both of them no doubt are interested witnesses in the sense that they are closely related to the deceased and the fight between the appellants on the one hand and Ram Prasad and his two nephews on the other took place in which each of them played an active part, but, to my mind, that is no ground in itself for the rejection of the testimony of these witnesses. Bahori and Shital are independent witnesses. The evidence of Bahori is not very satisfactory as has been pointed out by the leaned Judge in the course of his judgment. He had made some contradictory statements with the result that his statement recorded in the Magistrate's Court was brought on the record under Section 288, Criminal P.C. However, no such criticism is possible against the evidence of Shital Brahman which fully supports the prosecution case. On the evidence of Sheo Ghulam Ram Ghulam and Shital Prasad the leaned Judge came to the conclusion that they had given a correct version of the occurrence and that was in support of the case of the prosecution. He, however, specifically found that the lathi fight took place between the three appellants on the one side and Ram Prasad and Sheo Ghulam on the other. Ram Ghulam apparently joined in later without any lathi and he himself was hit. The leaned Judge finally convicted the appellants under Secs.304 and 323, Indian Penal Code, and sentenced Bhura appellant to one and a half year's rigorous imprisonment in view of his infirmity and old age and he sentenced Bodhan and Manrakhan to three years rigorous imprisonment each under Section 304, Indian Penal Code. All the appellants were sentenced to one month's rigorous imprisonment each under Section 323, Penal Code. The sentences were to run concurrently.