JUDGMENT

Vinod Prasad, J.

Appellants who are three real sibling brothers, Babu Ram, Ram Kumar and Ram Sudhar, all s/o Lakhan Ram, r/o village Babia, P.S. Cantt, District Bareilly, have preferred this appeal against impugned judgment and order dated 31.7.1981, recorded by 1st Additional District and Sessions Judge, Bareilly in S.T. No. 431 of 1980, State v. Babu Ram and others, by which, learned trial Judge has convicted all the three appellants u/s 304/34, I.P.C. and had sentenced them to 5 years' R.I. According to prosecution version, informant Ram Pher and deceased Puttu Lal were real sibling brothers and were first cousins of the appellants, as their fathers, Lakhan Ram and Sundar Lal, were real sibling brothers. Informant had cultivated wheat crop and had stacked it in the empty field of Ganga Prasad for being threshed at appellant's thresher, which was installed there to separate grains from the spikes. For threshing per quintal spikes, to separate grains from the capitulum, appellants were charging 8 Kgs. of wheat grains. On the incident date 12.4.1980 at 3.00 p.m. informant Ram Pher (P.W. 2) alongwith his brother Puttu Lal (deceased) got their wheat spikes threshed on appellant's thresher, but did not pay required 8 Kgs. of wheat grains and instead they started insisting that appellants should first thresh their capitulum (wheat crop knots/ganth) which could not be threshed properly and grain seeds were still attached with it. Accused appellants however, insisted that they will first thresh other spikes taken by them including spikes of Ram Gulam's, as a marriage was to be solemnized in his house, and only thereafter that they will thresh the capitulum (Ganth). Deceased, however, retaliated appellants attitude by saying that if they will not thresh his capitulum (Ganth), then he will not pay 8 Kgs. of wheat grains to them and he (deceased) also removed wheel belt. As a natural consequence, this was followed by hurling of abuses by the appellants which was objected to by the deceased and hence, in midst of exchange of vetuparisation, appellants started belabouring the deceased with clubs. When informant tried to rescue his brother, he too was assaulted as a result of which he also sustained minor injuries. In self defence informant also wielded lathi and caused injuries to Ram Kumar. Sustaining injuries deceased squatted on the ground. Commotion, hue and cry attracted Ram Bahadur. Devi Singh, Rameshwar, Jhunna Lal, Chhimmi and others at the incident scene who intervened into the assault and save informant and his brother. With the help of villagers, Puttu Lal (deceased) was brought to informant's house and after arranging a rickshaw, he was carried to the Police Station where informant Ram Pher (P.W. 2) dictated oral F.I.R. to the head constable and got it lodged same day at 6.35 p.m.

2. After registration of the crime, request letter for medical examination (chithi majrubi) was prepared and Puttu Lal was dispatched for his medical examination alongwith the informant, who did not get himself medically examined because he had sustained very minor injuries and thereafter he returned back to his house. Following day of the incident, deceased lost his life in the hospital.

3. Head moharir Anis Ahmad registered the crime by scribing the F.I.R. and G.D. entry Ext. Ka-3. After demise of the deceased, on 14.4.1980 that Investigating Officer S.I. Mahendra Singh (P.W. 5) commenced investigation into the offence, interrogated informant and penned down his 161, Cr.P.C. statement. Thereafter, following day, Investigating Officer recorded statements of other witnesses, conducted spot inspection and prepared site plan map Ext. Ka. 4 and subsequent thereto interrogated. inquest and recovery witnesses, and recorded their statements. Thereafter, P.W. 5, was transferred. Subsequent investigation was taken up by SI. R.P. Sharma, who recorded statements of witnesses Devi Singh, Brij Lal Singh, Ext. Ka 9, and ultimately wrapping it charge-sheeted