Point of Law:
If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report and in the F.I.R. which was written subsequent to the inquest report they could very well have put in the names of the other five appellants also because they were equally inimical to the prosecution party, and there could be no difficulty in doing so because it is found by the High Court that all the prosecution witnesses belonged to one party who are on inimical terms with the accused.

JUDGMENT :

ALI ZAMIN, J.

1. Heard Sri. I.K. Chaturvedi, learned Senior Counsel assisted by Sri. Ravindra Nath Rai, Sri. Vinay Saran, learned Senior Counsel assisted by Sri. Pradeep Kumar Mishra and Sri. Indu Shekhar Tripathi, learned counsel for the appellants, Ms. Mandvi Tripathi and Sri. Shiv Narayan Singh, learned counsel for the complainant/victim, Sri. M.C. Joshi, learned A.G.A. for the State, considered the written submission filed by Sri. Pradeep Kumar Mishra and perused the record carefully.

2. These appeals are directed against the judgment and order dated 05.02.2001 passed in S.T. No. 104/1987, State vs. Gauri Shankar and Others, whereby learned VIth Additional Sessions Judge, Ballia has convicted the appellants Gauri Shankar @ Bachchan Yadav, Ram Ashish Yadav and Rama Kant u/s 147, 302/34 IPC and sentenced each of them to undergo one year rigorous imprisonment and life imprisonment, respectively, fine Rs. 1000/- has been also imposed upon them with default stipulation.

3. Accused Vishwanath has been acquitted u/s 148 and 302 IPC by giving him benefit of doubt.

4. At the very outset it may be noted that accused Shiv Shankar and Munna Lal @ Sachchidanand have died during the trial and case has been abated against them.

5. In brief, prosecution case is that there is a Math and its Dhaba in village Karo. Ramakant Singh son of Sri. Tulsi Singh, younger brother of informant, Govind Singh was living in the dhaba. On 24.02.1987, Akhand Manas Path was going on in the Math and Ramakant Singh was present in the Dhaba. At about 9.00 a.m. due to old enmity, Gauri Shankar @ Bachchan Yadav and Shiv Shankar both sons of Rekha Yadav, Vishwanath Upadhyay son of Raj Narayan Upadhyay, Munna Lal @ Sachchidanand son of Yaduvansh Lal, Ram Ashish Yadav S/o Gauri Shankar Yadav and Ramakant Yadav S/o Basdev Yadav, all resident of village Karo, police station Chitbada Gaon, Ballia in furtherance of their common intention armed with lathi and bhala (spear) coming to the Dhaba exhorted Ramakant Singh to come out, on which by jumping back over boundary wall he fled towards East side. Assailants chased him with intention to kill and till reaching moonj (Sarpat) bushes of betel bhita (mound) of Vishwanath Barai surrounding him they assaulted with lathi and bhala, on account of which he died. On hearing noise informant, Satya Narayan Singh S/o Havaldar Singh R/o village Sujayat, Vijai Lal S/o Vishnu Lal R/o Basdev, Ram Baran Chaudhary S/o Jagdish Chaudhary R/o village Vishunpura police station Chitbada Gaon Ballia and several persons who were present in the Manas Path followed up to the spot to save the deceased and witnessed the incident.

6. On the basis of written report Ext.Ka-1, Case Crime No. 55/1987, under Sections 147, 148, 149, 302 I.P.C. against accused under chik F.I.R. Ext. Ka-2 was registered at 12:30 p.m. on 24.02.1987 and its entry was recorded on G.D. No. 16 (Ext. Ka-3) The investigation of the case was handed over to S.H.O. Sri. T.N. Mishra. Investigating Officer after recording the statement of informant Sri. Govind Singh, reached the spot. He prepared inquest memo Ext. Ka-5 and relevant documents like letter to C.M.O. (Ext. Ka-6), specimen seal (Ext. Ka-7), photo lash (Ext. Ka-8), police Form no. 13 (Ext. Ka-9) and dispatched the dead-body along with constable Uma Shankar Rai (PW-6) and Krishna Kumar Pandey for postmortem.

7. Dr. G.C. Upadhyay conducted postmortem of the dead-body on 25.02.1987 at 2:00 p.m. and prepared his report Ext Ka-4, according to which following injuries were found on the dead-body:

(i) Abrasion 2 c.m. x 1.2 c.m. on the right arm 6 c.m. above elbow.

(ii) Abrasion 4 c.m. x 1 c.m. on right ankle joint on the anterior part.

(iii) Abrasion 1 c.m. x 10 c.m. On the back of thigh middle of right thigh.

(iv) Abrasion 2 c.m. x 2 c.m. on the right side face just below the right eye.

(v) Lacerated wound 2 c.m. x .05 c.m. x scalp and oblique at 9 O'clock position just lateral and above the lateral end of right eye.

(vi) Lacerated wo