Hon'ble Arvind Kumar Mishra-I, J.

The instant criminal appeal has been preferred by the appellants Jawahar and Sagar, both sons of Kalahu, resident of Village Kathaicha, Police Station Khajni, Post Office-Unwar, District Gorakhpur against the judgment and order of conviction and sentence dated 21.9.1991 passed by VIIIth Additional Sessions Judge, Gorakhpur in Session Trial No.334 of 1990 (State vs. Kalahu & Others) arising out of Case Crime No.46 of 1989, under Sections 323 and 307 IPC, Police Station Khajni, District Gorakhpur, whereby appellant no.1 Jawahar was sentenced to seven years rigorous imprisonment under Section 307 IPC, whereas, appellant no.2 Sagar was sentenced to six months rigorous imprisonment under Section 323 IPC.

Heard Sri Sandeep Kumar, learned counsel for the appellants as well as Sri Om Narain Tripathi, learned A.G.A. for the State and perused the record.

Stream of events leading up to this stage as gathered from the record is found to be rooted in the written report Exhibit Ka-1 lodged by informant Harish Chandra s/o Ram Awadh Bhar resident of Village Kathaicha Bindan, Police Station Khajni, District Gorakhpur on 19.5.1989 at 12:40 hours against the appellants with the allegations that the informant and his brother Jai Narain are resident of same village. Jai Narain s/o Dwarika is his cousin brother. Accused Kalahu is his uncle. A long drawn enmity on account of landed property was existing between Kalahu and Jai Narain and litigation was going on between them. Harish Chandra works at some brick-kiln and is engaged to mould bricks. It so happened on 18.5.1989 at about 10:00 p.m. Satyadeo Dubey, who is 'munim' (one who takes care of account of any institution) at the brick-kiln came to the spot along with Jai Narain and said to the informant that he had taken Rs.900/- in advance from the owner of the brick-kiln but he is not working at the brick-kiln. Satyadeo Dubey began to abuse him. At this moment, the aforesaid two accused Jawahar and Sagar arrived at the house of Harish Chandra. Sagar was possessing lathi while Jawahar was possessing spear in his hand and said that they (informant side) are humiliating them by calling Satyadeo Dubey there on the spot and altercation ensued place between them, whereupon Dukh Haran, and Ram Pratap son of Harish Chandra's uncle also reached on the spot and tried to intervene and pacify them, but the accused did not listen to them. In the meanwhile, accused Sagar gave lathi blow on the head of the informant Harish Chandra causing injury on his person. Jai Narain tried to control the situation by interfering when he was assaulted with spear by Jawahar, which caused injuries on his left side of chest, on the arm and head. The incident was witnessed by the persons present over there.

After committing the offence, the accused ran away from the spot. Jai Narain was seriously injured. Therefore, he was brought to the District Hospital, Gorakhpur for treatment where he was medically examined by the Medical Officer on emergency duty, at 2:30 a.m. on 19.05.1989, the very same night. He prepared injury report of Jai Narain (Exhibit Ka-11). Looking to the nature of injuries he was referred for further treatment to the Medical College, Gorakhpur, then Jai Narain was shifted to Medical College, Gorakhpur where he was admitted and given treatment. It was also described in the report that after disengaging himself from above schedule of treatment and sparing time the informant has come to the police station to lodge the report.

Record reflects that contents of this written report were noted down in the concerned Check FIR at Case Crime No.46 of 1989 under Sections 323, 307 and 504 IPC, at Police Station-Khajni, District Gorakhpur, at 12:40 hours on 19.5.1989. Check FIR is Exhibit Ka-4. Consequently, relevant entries were also made in the concerned general diary of the aforesaid date and time at aforesaid police station at Serial No. 20 and the case was registered on 19.05.1