1. This Criminal Appeal is preferred by appellants Harihar, Moti Lal, Lutawan @ Lutan and Ram Subhag against the judgement and order dated 14.10.1985 passed by VIIth Additional Sessions Judge, Deoria in S.T. No. 64 of 1984 by which they have been convicted and sentenced to imprisonment for life u/s 302/34 I.P.C., two years and six months rigorous imprisonment u/s 324/34 and 323/34 I.P.C., each on both counts. All the sentences were directed to run concurrently.

2. PW3 Fagu lodged a written complaint (Ext. Ka1) at P.S.-Padrauna, District-Deoria on 22.08.1982 at about 12:30 p.m., alleging therein that he was co-owner of a grove situated in the northeast corner of his village, Mathiya Khas. In the partition of guava trees, which had taken place between its co-sharers, complainant, Lutawan, and Harihar, Moti Lal and Jhoolan, one-third share was alloted to the complainant and Lutawan each individually and Harihar, Moti Lal and Jhoolan jointly. The branches of the guava trees standing in the grove spread over the different portions of the co-sharers. While Jhoolan, who also looked after the agricultural work of the complainant, was plucking guava from a tree which had fallen to his share at about 10 a.m. on 22.08.1982, appellant no.1 Harihar and appellant no.2, Moti Lal stopped him from plucking guavas which lead to an altercation between them which took an ugly turn on which A3 Lutawan and A4 Ram Subhag also reached the place of occurrence armed with lathi and ballam and started beating the deceased, complainant, Smt. Bhikhani, wife of Jhoolan and Kaushalya, daughter of Jhoolan, tried to intercede on which they were also beaten by them. On hearing the noise raised by Ram Vilas, son of Jhoolan, who on getting scared at seeing the incident, had run towards the village, PW1 Dwarika and several other persons ran towards the place of occurrence. In defense, they also used lathis in the incident. The complainant, wife and daughter of Jhoolan received serious injuries and fell on the ground in the grove. After the lathi of Jhoolan was broken, he ran towards west on which the accused-appellants chased him and after overpowering him in the rice field, they beat him severely. On hearing the cries of help of the complainant and others present at the place of incident, on the intercession of the villagers and on being admonished by them, the accused-appellants ran towards their home, after committing the incident. Case Crime No. 169 of 1982 was registered against all the accused-appellants u/s 308, 324 and 325 I.P.C. Check F.I.R. (Ext. Ka2) and the relevant G.D. entry (Ext. Ka3) were prepared on the same day vide report no.20 at 12:30 p.m. on 22.08.1982 (Ext. Ka3) by PW9 Rama Shanker Pandey. The investigation of the case was entrusted to PW9 S.I. Rama Shanker Pandey, who immediately recorded the statements of PW1 Dwarika, PW3 Fagu, PW4 Bhikhani and Kaushalya u/s 161 I.P.C. on 22.08.1982 and referred the injured to Sadar Hospital, Deoria for their medical examination where their injuries were examined on the same day at 4:35 p.m., 5:10 p.m. and 5:15 p.m. respectively by PW7 Dr. C.B. Singh. The injury reports of PW3 Fagu, deceased Jhoolan and Kaushalya were brought on record and proved as Ext. Ka4, Ext. Ka5 and Ext. Ka6. Injured Jhoolan died immediately after being admitted to the hospital whereupon the case was converted to one u/s 304 I.P.C. PW9 S.I. Rama Shanker Pandey performed the inquest on the dead body of deceased Jhoolan in Padrauna hospital and prepared his inquest report (Ext. Ka8) and other documents challan nash (Ext. Ka9), specimen of seal (Ext. Ka10), photo nash (Ext. Ka11), request letter for conducting postmortem addressed to C.M.O (Ext. Ka12), form no.33 (Ext. Ka13) and copies of the F.I.R and G.D (Ext. Ka14 and Ext. Ka15 respectively) and dispatched the dead body of the deceased for postmortem in the custody of PW5 Constable Suryadeo Tiwari and Constable Aditya Singh. The postmortem on the cadaver of the deceased Jhoolan was co

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