JUDGMENT :

1. Heard Sri Mahendra Pratap Singh, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.

2. This criminal appeal has been filed against the judgment and order dated 21.10.1994 passed by IVth Additional District and Sessions Judge, Kanpur Dehat, in Sessions Trial No. 101 of 1992, State of U.P. vs. Ram Babu and Another arising out of Case Crime No. 96 of 1989, Police Station-Sikandra, District-Kanpur Dehat.

3. By the impugned order, the trial court has convicted the appellants, Ram Babu and Ram Prakash u/s 308 r/w 34 I.P.C. and sentenced them to two years six months rigorous imprisonment.

4. The prosecution case as revealed by the written report dated 17.10.1989 submitted by informant Jairam in Police Station-Sikandra is that he is resident of Sahajpur, Police Station-Sikandra, District-Kanpur Dehat. Last year accused, Ram Babu had quarrel with informant’s son, Jagdish due to which he kept enmity with the informant and his son. On 17.10.1989 at about 8 a.m. informant’s son, Jagdish, was going to meet ex-M.P. of District- Etawah, Ram Singh Shakya, who had arrived in his village at the residence of Shiv Prasad. Accused, Ram Babu was holding a hansia in his hand. He exhorted his son that why is his enemy passing in front of his door. On the exhortation of accused-appellant, Ram Babu, his brother, Ram Prakash armed with a lathi, his son, Anil and Sudhir, armed with kanta arrived there and started beating informant’s son, Jagdish. On hearing the noise, informant, Jairam, his other son, Rakesh and Vishram Singh son of Ram Sharan and other persons of his village arrived on the spot and raised alarm on which the accused persons escaped from the place of occurrence. Jagdish received grievous injuries caused by hansia, lathi and kanta. He fell down on the spot and became unconscious. The informant took Jagdish to the Police Station-Sikandra, where he gave the written report on the basis of which Case Crime No. 96 of 1989 u/s 308 I.P.C. was registered against the accused-appellants, Ram Babu and Ram Prakash and two other persons.

5. The institution of the criminal case was entered in the case diary by the Head Moharrir, Tara Singh, who proved the same as (Ext.Ka.4). The investigation of the case was first done by S.I. C.P. Singh and on his transfer by S.I. Madhusudan Singh, who visited the place of occurrence and prepared the site plan (Ext.Ka.5), recorded the statement of the witnesses and after completion of investigation, submitted charge-sheet u/s 308 I.P.C. against accused-appellants, Ram Babu and Ram Prakash. The case was then committed to the court of Sessions by Additional Chief Judicial Magistrate, IIIrd, Kanpur Dehat vide order dated 29.02.2022.

6. On 17.10.1992, the IVth Additional Sessions Judge, Kanpur Dehat, framed charge u/s 308 r/w 34 I.P.C. against accused-appellant, Ram Babu and Ram Prakash. They denied the charge and claimed trial.

7. To prove the charge, the prosecution examined injured PW-1 Jagdish, informant PW-2 Jairam and eye-witness PW-3 Vishram Singh as witnesses of fact whereas Medical Officer PW-4 Dr. Subhash Sharma, PW-5 S.I. Tara Singh, who was the then Head Moharrir at Police Station-Sikandra, Investigating Officer PW-6 S.I. Madhusudan Singh and radiologist PW-7 Dr. V.C. Rastogi, were examined as formal witnesses.

8. PW-1 Jagdish, PW-2 Jairam and PW-3 Vishram Singh gave evidence about the occurrence of crime. The informant PW-2 Jairam also proved the written report (Ext.Ka.1) which he had submitted at the Police Station-Sikandra on the basis of which first information report was registered.

9. PW-4 Dr. Subhash Sharma, the then Medical Officer at District Hospital, Sikandra, examined the injured Jagdish on 17.10.1989 at 8.30 p.m. and had prepared his injury report (Ext.Ka.2). As per the injury report, following injuries were found on the person of the injured Jagdish:

(i) Incised wound 2 cm x 3 cm x bone deep at right side of forehead at right frontal 1.5 cm above fro