C.M. PRASAD, J.:- The appeals are against the judgment dated 19.6.92 of the Vith Additional District & Sessions Judge, Arrah, passed in Session Trial No. 335 of 1987 whereby each of the four appellants has been convicted under section 307 read with section 34 of the Indian Penal Code and santenced to undergo rigorous imprisonment for seven years. The appellant Rajendra Prasad @ Bhagwan has also been convicted under section 324 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years. Each of the two appellants namely Badri Prasad Sao and Kashi Nath has been convicted under section 323 of the Indian Penal Code and sentenced to undergo R.I. for one year. All the sentences were ordered to run concurrently.

2. The fardbeyan (Ext. 2) of the informant Sheo Jatan Sao was recorded by S.I. S.Z. Akhtar, Officer Incharge of Sahar P.S. on 1.11.1986 at 1.45 P.M. at Sahar State Dispensary where the informant was lying for treatment in injured condition. The prosecution case as stated in the fardbeyan is that on that day he, alongwith his son Uttam Kumar Gupta (P.W.2) was cleaning the house on the occasion of Deppawali. His elder brother Badri Prasad (appellant) alongwith his son Ramchandra Prasad Kashi Nath Prasad and Rajendra Prasad @ Bhagwan (appellant) came them and prohibited him from cleaning of the house. Ramchandra and Bhagwan had Bhala and Kashi and Badri had lathi. The appellants obstructed the informant in the cleaning on the ground that the house had not been partitioned whereupon he said that an oral partition had already taken place and that the same was also confirmed by a decree of civil court, whereupon, it is further said that appellant Badri Sao ordered to assault and then appellant Rajenora @ Bhagwan assaulted Uttam Kumar (P.W. 2) with Bhala on his back. Informant went to save his son (Uttam) but appellant Ramchandra assaulted him with Bhala on his neck. Receiving injury informant fell down and it is said that the accused persons further assaulted them with lathi. They were brought to Sahar Hosptial where police arrived at and recorded the fardbeyan. The informant stated in his fardbeyan that he had a decree of civil court relating to partition. The appellant had filed an appeal which was pending in the High Court.

3. As many as five witnesses were examined by the prosecution. P.W. 1 Nand Keshwar Singh is co-villager who is said to be the eye witness to the occurrence. P.W.3 Sheojatan Sah is the informant himself and P.W.2 Uttam Kumar Gupta is the informant's son, P.W. 6 Bijay Kumar Shrivastava is a formal witness who has proved the injury report Ext. 5 and 5/1 relating to injury on the P.W.S. 2 and 3.

4. The doctor and the Investigating Officer of this case have not been examined by the prosecution.

5. The informant (P.W. 3) deposed about the occurrence on the lines as he has stated in his fardbeyan. He says that while he alongwith his son (P.W. 2) was cleaning the house the appellant objected to it saying that the house had not been partitioned. He (informant) said that a partition-had already been effected which was also confirmed in the partition suit. Appellant Badri Sao ordered to assault and then appellant Rajendra assaulted the P.W.2 with Bhala. He further deposed that when he went to save the P.W.2, appellant Ramchandra Praad assaulted him with Bhala on his neck. Receiving injury, he and P.W.2 fell down whereupon the appellant assaulted with lathi. He further deposed that P.W.2 and 3 were taken to hospital. He also deposed about the recording of his fardbeyan in the hospital. In cross-examination at para 8 he admitted that the P.O. house stands jointly in the name of informant and Badri (appellant). At para 7 (repeated paragraph 7) he further deposed that the rent receipt was being issued in the Joint name i.e. him and the appellant Badri Sao. At para 11 he deposed that Ramchandra Prasad had given only one blow and he had not repeated any blow by means of Bhala.

6. P.W.2 Uttam Kumar is the son of

Click Here to Read the rest of this document