Point of Law: Attempt to Culpable homicide and Rioting - Conviction modified - It was necessary to arrive at a finding that ingredients thereof, requisite intention or knowledge was existing - There cannot be any doubt whatsoever that such an intention or knowledge on part of accused to cause culpable homicide is required to be proved.

JUDGMENT :

1. Heard Sri S.K Chaturvedi, learned counsel for the appellants and Sri Rudra Kant Mishra, learned. A.G.A assisted by Sri S.B. Maurya appearing for State of U.P.

2. This criminal appeal has been filed against the judgment and order dated 09.01.1996 passed by the Additional Sessions Judge Gorakhpur in S.T. No.240 of 1993 (State vs. Bhawani Prasad & others) Case Crime No.341 of 1992, P.S. Sahjanwa, District-Gorakhpur, convicting all the appellants (accused) under Section 147 IPC and sentencing them to undergo rigorous imprisonment for one years each and convicting under section 308\149 IPC and sentencing them to undergo rigorous imprisonment for three years each. Both the sentences have to run concurrently.

3. In brief, the facts are that the complainant Bhragunath Pandey gave an application dated 03.10.1992 at Police Station-Sahjanwa, District Gorakhpur alleging therein that today with his real brother Pramod Kumar Pandey and mother Savitri Devi, he went to his field to harvest his paddy crop. At about 10:00 a.m. Bhawani Prasad Pandey, Chunni Lal Yadav, Nand Lal Yadav, Sudarshan Yadav and Bhimal Yadav armed with lathi-danda came at the field and started restraining them from harvesting the crop complainant party said that they have sown it so they will harvest it. Meanwhile Sri Ram Pandey, Jai Prakash Pandey and Subhash Pandey also came there and said to Bhawani Prasad Pandey and his companions that why they are restraining from harvesting the crop, Bhragunath Pandey has sown it so he will harvest it. On this, all the above named persons started to abuse, chased the complainant and their companions to assault them. On the exhortation of Bhawani Prasad Pandey, all accused persons started to beat Sri Ram Pandey with lathi-danda due to which he suffered injuries on his head, legs, back and chest and he became unconscious. On the noise and seeing the condition of Sri Ram Pandey, the accused persons ran away from the spot. Sri Ram Pandey was taken to the hospital.

On the aforesaid application, a case bearing case crime no.327/92 under Section 147, 148, 323, 504, 308 IPC was registered at Police Station-Sahjanwa, Gorakhpur. Injured Sri Ram Pandey was medically examined and put under treatment. The Investigating Officer visited the place of occurrence and prepared the site plan, recorded the statements of complainant, injured and other witnesses and after completion of investigation submitted the charge-sheet against accused persons namely Bhawani Prasad Pandey, Chunni Lal Yadav, Nand Lal Yadav, Sudarshan Yadav and Bhimal Yadav.

Learned trial court framed the charges against the aforesaid accused persons under Section 147, 308 read with Sections 149 and 325 read with Sections 149 IPC. Accused persons denied the charges and claimed for trial. The prosecution produced seven witnesses. Statements of the accused persons under Section 313 Cr.P.C. was recorded in which they denied the prosecution case and further stated that they have been falsely implicated due to enmity. No evidence in defence produced by them. The learned trial court, after hearing the arguments by the impugned judgment, has convicted all the accused (appellants).

4. As per medical report, Ex. Ka.4 injured Sri Ram Pandey was medically examined on 03.10.1992 at 12:45 p.m. at District Hospital, Gorakhpur by the emergency medical officer. The Doctor has noted following injuries on his body:-

(i) lacerated wound 3.5 cm X 0.5 cm into scalp deep on right side of head, 7 cm above right ear, bleeding present

(ii) Contusion 8 cm X 4 cm on outer part of right forearm just below elbow joint reddish

(iii) Multiple contused swelling in an area of 23 cm X all around on right forearm, injury kept under observation, X-Ray advised

(iv) Traumatic swelling 6 cm X 6 cm on right chest around right nipple

(v) Contusion 10 cm X 2 cm on right upper back, reddish

(vi) Contusion 12 cm X 2 cm on right upper back, 5cm below injury no.5

(vii) Contusion 8 cm X 2 cm on lower back, reddish

(viii) Contusio