JUDGMENT :

1. The present appeal is preferred against judgment and order dated 18.12.1981 passed by Vth Additional Sessions Judge, Ballia in Session Trial No.64 of 1981, convicting and sentencing the appellant-Radha Mohan Rai under Section 323 read with Section 149 of the Indian Penal Code and Section 147 of the Indian Penal Code on probation for two years while suspending the sentence.

2. The present appeal has been filed by two Appellant's, namely, Radha Mohan Rai (Appellant no.1) and Ram Kripal (Appellant no.2). During the pendency of the appeal, Ram Kripal (Appellant no.2) has died and the present appeal is abated in respect of Appellant no.2 by order dated 01.02.2010.

3. The prosecution case as per the first information report is to the effect that Madan Rai-informant had enmity with Ram Chhabila Rai regarding taking meals together. Radha Mohan is relative of Ram Chabila. About one month prior to the incident, Ram Chabila Rai wanted some passage to his house through the courtyard of the informant and the informant had promised Ram Chabila Rai for passage from the eastern corner of his house but Ram Chabila Rai did not accept the same. There was a panchayat in respect of the aforesaid dispute where the informant promised Ram Chabila Rai to give him passage through the border. Radha Mohan became annoyed and in the panchayat threatened the informant by throttling his neck and stating that he will take passage after finishing the informant. The other persons present in the panchayat intervened.

4. On 27.05.1980, informant together with his cousin Virendra Rai and uncle Munni Rai were sleeping at his tubewell in Village-Mansurpur. Three accused persons together with five-six other persons came there being armed with lathi and country made pistol. There was no electricity at the tubewell but the lantern was burning. The informant was lying awaken. The accused-appellant Radha Mohan shouted what is the delay we have got all three together kill them. On the aforesaid call, all the accused persons started beating the complainant, his uncle and cousin. As a result of the same, the uncle of the complainant and cousin was badly injured. The accused persons could be recognised in the moonlight and in the light of the lantern. The other persons could be recognised after seeing them. On his alarm, some persons of the nearby vicinity arrived there and thereafter, the accused persons left thinking that the injured have died. The family members took the three injured persons to the hospital on the same night. The uncle of the complainant and the cousin were in serious condition in the hospital and after getting himself medically examined, the complainant came to the police station to lodge the first information report. The first information report was lodged on 28.05.1980 at 8:20 AM at police Station Phephna, which is 6 miles away from the place of occurrence.

5. On the basis of the aforesaid first information report, a case under Sections 147, 148, 149, 307 I.P.C. was lodged at Police Station Phephna being Case Crime No.126 of 1980.

6. The injured persons were medically examined by Dr. Arun Kumar on 28th May, 1980 am at District Hospital, Ballia.

7. After completion of investigation, Investigating Officer has submitted chargesheet against the accused persons and charges were framed on 19th September, 1981 against the accused persons under Sections 307/149/147, 323, 149, 325/149 I.P.C.

8. All the accused persons have denied the charges levelled against them and have claimed to be tried. In support of prosecution case seven witnesses were examined.

9. P.W.1-Madan Rai has stated that he has a residential house having an area of 3-4 kita and appurtenant land. He has further stated that he has a tubewell which is three furlong from his house and tubewell is on the agricultural land. He has further stated that Munni Rai is his uncle and Virendra Rai is his cousin brother. He has stated that his uncle Munni Rai is living with him and cousin Virendra also