JUDGMENT :

Heard Sri Shailendra Kumar Tripathi holding brief of Sri Abhinav Dwivedi, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned AGA appearing for the State.

2. This criminal appeal has been filed against the judgment and order dated 21.12.1988 passed by Special Judge (Essential Commodities Act), Farrukhabad in S.T. No. 113 of 1984 (State vs. Digamber Singh and three others) arising out of Case Crime No.7 of 1983 under Sections 302 IPC P.S. Thathiya, District Farrukhabad. As per status report filed by learned AGA, no government criminal appeal has been filed against the aforesaid acquittal order.

3. By the impugned order, the trial court has convicted accused appellants Digamber Singh, Bachchu Singh and Dhanpal Singh under Section 323 IPC read with Section 34 IPC and under Section 325 IPC read with Section 34 IPC and sentenced each accused under Section 323 IPC one year’s rigorous imprisonment with a fine of Rs. 1,000/-and under Section 325 IPC three years’ rigorous imprisonment with a fine of Rs. 2,000/-with default stipulation. The trial court has acquitted all accused of all the charges levelled against them under Section 302 IPC read with Section 34 IPC.

4. During pendency of the criminal appeal, the appellant no. 3 Bachchu Singh died and criminal proceedings against him were abated. Thus, the criminal appeal filed by the appellants Digamber Singh and Dhanpal Singh is to be decided by this Court.

5. The prosecution case in brief is that the appellants accused Digamber Singh and Bachchu Singh are real brothers and accused Dhanpal Singh is the son of Bachchu Singh. The informant Lakhan Singh son of Kunwar Singh is the resident of village Mannapurwa, Pargana Narsai, Police Station Thathiya, District Farrukhabad. The informant Lakhan Singh and appellants accused are relatives. Mukut Singh, uncle of the informant Lakhan Singh, had gone to demand Rs. 150/-from accused Dhanpal Singh which he had borrowed from Mukut Singh about 5 to 6 years earlier. Even after repeated demands, Dhanpal Singh did not repay the loan amount. On 11.01.1983, at 5.00 pm in village Mannapurwa, Pargana Narsai, Police Station Thathiya, District Farrukhabad, Mukut Singh went and asked Dhanpal Singh to pay the loan amount. Dhanpal Singh refused to pay the loan amount and abused him. Mukut Singh forbid him from abusing, accused Bachchu Singh and Dhanpal Singh started beating Mukut Singh. On alarm being raised by Mukut Singh, informant Lakhan Singh, his father Kunwar Singh reached at the place of occurrence, thereafter accused Digamber Singh, Bachchu Singh and Dhanpal Singh brought lathi from their house and started beating Lakhan Singh and his father Kunwar Singh. They also assaulted Mukut Singh. Kunwar Singh received injury on the head and fell on the ground who died later on. Pws Indrapal Singh and Kishanpal reached at the place of occurrence and they saw the incident and on their chasing, all the accused ran away from the spot. In the incident, Kunwar Singh died and informant Lakhan Singh and his uncle Mukut Singh received injuries caused by lathi. Informant Lakhan Singh prepared written report (Ex.Ka.9) on the basis of which FIR was lodged on 11.01.1983 at 9.30 pm as Crime No. 7 of 1983 under Section 302 IPC against accused Digamber Singh, Gorakhnath Singh, Bachchu Singh and Dhanpal Singh. Chik FIR thereof is Ex.Ka.6. The registration of criminal case was entered in GD which is Ex.Ka.9.

6. Injured Mukut Singh was medically examined on 12.01.1983 at 9.00 am in government dispensary Thathiya, by Dr. D.P.Bajpai (Ex.Ka 4). Two contusions and complaint of pain on right knee joint were found. Injured Lakhan Singh was medically examined on 12.01.1983 at 9.30 am in government dispensary Thathiya (Ex.Ka 5). Eight injuries including lacerated wound and abrasions were found in different parts of his body.

7. The panchnama proceedings (Ex.Ka.14) of deceased Kunwar Singh was done by Sub-Inspector B.S.Tomar. The investigation of the case was done