JUDGMENT U.K.Verma J. 1. The appellant Sant Ram had been convicted U/ss 302, 324 and 323 read with section 34 I.P.C. and, Ram Dhruva U/s 323 and Sections 302 and 324 read with Section 34 I.P.C. Each of them has been sentenced to imprisonment for life U/s 302 and 302 read with Section 34 I.P.C., two years R.I. U/ss 324 and 324 read with Section 34 I.P.C. and one year R.I. U/s 323 read with section 34 I.P.C. and 323 I.P.C. Aggrieved by the judgment and order of Sri Kamal Kishore IV Addl. Sessions Judge, Basti dated 5.2.79 in the Sess. Trial No. 199 of 1978, the appellants have come up in appeal. 2. The facts of the prosecution case lie within a short compass. The appellants Sant Ram and Ram Dhruva are brothers being the sons of Jainath. The deceased Rudal was the son of Kalp Nath Dube, The father of the appellants Jainath and the father of the deceased Kalap Nathwere sons of Hanuman Dube. The hut of the appellants was close by the manure storge of the deceased. On 19.4.78 the hut of the appellants caught fire. The 'manure of the deceased was thrown on the burning hut to extinguish the fire. It had born agreed that the appellant Sant Ram would return back the manure of the deceased so estracted. On 1.5.78 i.e. the date of incident, the wife of the deceased Rudal, named Prabhawati look two Khanchi of manure belonging to Sant Ram. When she was filling it the thrid time the wife of Sant Ram objected to it. There started an altercation between the two ladies. The deceased Rudal intervened for his wife and the appellants took the side of the wife of Sant Ram appellant. Sant Ram pulled the feet of Rudal and he fell down. Dhruva kept pressing him on the ground and Sant Ram started inflicting knife blows on him one after the other. When the mother of Rudalnamed Krishana tried to cover Rudal to save him from the assault, Sant Ram inficted knife injuries on her too. Ram Dhruva also hit Prabhawati with lathi when she tried to save her husband. In the mean time, Ram Ujagir Dube P.W.1 and Ram Suchit who had his shop near by arrived together on hearing the case: raised for saving Rudal. Ram Suchit and Rudal managed to disarm Sant Ram. Ram Dhruva also hit Prabhawati with lathi when she tried to save her husband. In the mean time, Ram Ujagir Dube P.W.1 and Ram Suchit who had his shop near by arrived together on hearing the case: raised for saving Rudal. Ram Suchit and Rudal managed to disarm Sant Ram. While so doing, Ram Suchit sustained knife injury on the drosal suffice of his right thumb. Rudal on account of the injury in fthcted died at the spot. Ram Ujagir went to the police station and lodged the report Ext. Ka7 at 8.30 A.M. within an hour of the incident. The appellants too had set up a counter version in the report Ext. Ka 9 lodged by Sant Ram. They had got themselves examined and the medical report of Sant Ram is Ext. IKa17and; that of Dhruva is Ext. Ka 18. 3. The prosecution had examined the injured Ram Suchit P.W.3 and Smt. Prabhawati P.W.4 besides Ram Ujagir informant P.W.1 and Km. Sharda P.W.2 aged ten years daughter of the deceased as the witnesses of the occurrence. The postmortem examinations of Rudal had been done by Dr. R.C. Varma P.W.6 He proved his report Ext. Ka 3 it shows Rudal to have sustained ten incised wounds four of them were above the neck, one was found chest cavity deep and yet another was discovered to be abdominal cavity deep. The internal examinations revealed that the left lung of Rudal had been cut and the same was the state of his left kidney. The doctor opined that Rudal Dube had died as a result of these injures no. 7 and 8 which were chest and abdominal cavity deep besides the shok as a result of the numbersous injures inflicted. The I.O. Jai Singh P.W.7 narrated the investigations done by him from the start till the submission of the chargesheet. 4. The appellants had pleaded not guilty. They did not during trial stick to the stand taken by them in their report Ext. Ka 9 on the basis of which, the G.D. entry Ext. Ka 10 had been made. 5. We went through the evidence on record and heard the learned counsel for the appellants Sri. R.C. Shukla and the learned counsel for the State Sri. R.C. Deepak at length. 6. The learned Addl. Ka 9 on the basis of which, the G.D. entry Ext. Ka 10 had been made. 5. We went through the evidence on record and heard the learned counsel for the appellants Sri. R.C. Shukla and the learned counsel for the State Sri. R.C. Deepak at length. 6. The learned Addl. Sessions Judge has elaborately discussed as to how he had no reason to doubt that the incident had been witnessed by the injured Ram Suchit P.W.3 and Smt. Prabhawati P.W.4 and also the daughter of the deceased Km. Sharda P.W.2 and the informant Ram Ujagir P.W.1 The account given by these tour prosecution witnesses so far as Sant Ram appellant is concerned is free from all suspecious and hang together very well. Any quarrel proceeding the incident, cannot be presumed to provide grave and sudden provoication. From the evidence aduced by the prosecution it cannot be persumed. There is further no suggestion of the existence of circumstances in which it could be presumed. The learned Addl. Sessions Judge has in his 'judgment has fully considered whether the plea of the right of self defence although nor specifically taken during the trial could be held to be available to the appellants or not. The injuries on the person of Sant Ram recorded in Ext. Ka 17 are not on vital parts. Besides they are superficial too. They appear to have resulted when he was prevented from killing Rudal or were self inflicted. Erom the G.D. entry Ext. Ka 10, it appears that when Sant Ram had gone to lodge the reoort Ext. Ka 9 he was accompained by Sri. Chandra Kishore, Advocate. There appears no reason to doubt the correctness of the G.D. entry aforesaid. It has also not been shown as to why the I.O. Jai Singh P.W.7 could go to the extent of making false entry in the G.D. Regarding the presence of the Advocate accompanying the appellant Sant Ram when he had gone to lodge the report. It is quite likely that Sant Ram took him to the police station to plead for him or at least for getting his version of the incident recorded so that the he could try to derive benefit there from during the trial. The E.I.R. lodged by Sant Ram convicingly shows that he was involved in the incident. It is quite likely that Sant Ram took him to the police station to plead for him or at least for getting his version of the incident recorded so that the he could try to derive benefit there from during the trial. The E.I.R. lodged by Sant Ram convicingly shows that he was involved in the incident. He denied it during trial because of his own feeling that his plea of self defence was hopeless. 7. Ram Suchit P.W. 3, then we find is an indepedent witness. Although while disarming Sant Ram of the knife, he received injury in his thumb by his knife, he did not try to add colour to the case by pointing that he too had been assaulted by Sant Ram. The wife of the deceased Smt. Prabhawati P.W.4 very naturally would have rushed to save Rudal along with her mother in law. There is no improbability at all in her statement that Dhruva assaulted her with lathi. She had been examined within three and a quarter hours of the incident. Her injury on the hand measured 9 cm x B cm. and the dimansion of the injury on her knee was 18 cm. x 16 cm. the doctor had advised xray of both these injures. It would be absurd to presume that after the death of her husband she would have got the injury inflicted on herself to make her statement at the time of trial more credetable. The presence of Km. Sharda near the scene of occurrence is also very natural as the house of the deceased was nearby. There is no improbability in Ram Ujagir Dube P.W.1 having been present at the shop of Ram Suchit at the time of the incident. He deposed that he had helped in the seizure of the knife by Ram Suchit. The evidence about Sant Ram having inflicted a" the brutal injuries on Rudal with his knife after he had fallen on the ground has been fully established without any shadow of doubt whatsoever. The postmortem report tells the tale of his cruelty. He had also not spared the mother of Rudal and was merciless even to her. The injures inflicted by him evidently are intentional. They were sufficient in the ordinary course of nature to cause the death of Rudal. The postmortem report tells the tale of his cruelty. He had also not spared the mother of Rudal and was merciless even to her. The injures inflicted by him evidently are intentional. They were sufficient in the ordinary course of nature to cause the death of Rudal. The murderous assault of Sant Ram in any view of the matter falls within the abmit of clause 3 of Section 300 of the I.P.C. and there is no force in the appeal so for as he is concerned. 8. Coming now to the conviction of Dhruva U/s 302 read with section 34 I.P.C. It has to be noted that he had not inflicted any injury on the deceased. The only injures caused by him were on Prabhawati which were on non vital parts although not without force. If Dhruva appellant had really been pressing Rudal deceased all the time as had been suggested by the prosecution, he would not have been in a position to inflict lathi injuries on Smt. Prabhawati, the wife of the deceased Km. Sharda. P.W.2 her simple narration of the story did not state that while Sant Ram was inflicting knife injuries Dhruva had been pressing Rudal on the ground. Smt.Prabhawati and Km. Sharda both stated that it was Sant Ram who had pulled t he feet of Rudal when he fell on the ground. Ram Suchit P.W.3 and Ram Ujagir P.W.1 did not state that Dhruva struck them with lathi when they were disarming Sant Ram appellant of the knife. Even if it was believed that initially Dhruva had assisted Sant Ram in suhduing the deceased Rudal, would not be safe to necessarily presume that he shared the common intention of sant Ram Dube in making murderous assault on Rudal or in the infliction of the particular injuries which had resulted in his death. It is not the prosecution case that there was any premediation between the appellants with regard to the assault. It is not the prosecution case that there was any premediation between the appellants with regard to the assault. The appellant Dhruva, as such at any rate, has to be given the benefit .of doubt and acquitted of the charge U/s 302 read with section 34 I.P.C. but on the evidence on record he cannot be absolved of the charge U/s 324 read with section 34 I.P.C. for the injures caused by Sant Ram to Rudal and to his mother Smt. Kishuna, and of the charge U/s 323 I.P.C. for himself having caused injures to Smt. Prabhawati contained in Ext. Ka 19 without any excuse. ORDER 9. The appeal, so far as Sant Ram is concerned consequently fails and is dismissed. His conviction u/s 302 I.P.C. 324 I.P.C. and 323 read with Section 34 I.P.C. and the sentences of imprisonment for life, two years R.I. and one year R.I. awarded to him respectively on the above counts are upheld. He is on bail. Hs will surrender to his bail bonds to serve out the sentences of rigorous imprisonments awarded to him which will run concurrently. 10. The appeal of Ram Dhruva is partly allowed. His conviction U/s 302 read with section 34 I.P.C. and the sentence of imprisonment for life awarded to him on this count are setaside. He is acquitted of this charge but he instead is convicted U/s 324 read with section 34 I.P.C. on two counts and also U/s 323 I.P.C. The sentences of imprisonment awarded to Ram Dhruva Dube are being modified to one of fine in all amounting to Rs. 6000/ to which his counsel has no objection. He is allowed three months time to deposit this fine in the court of the C.J.M. Basti who will pay haK and half of the realised fine to Km. Sharda. and Smt. Prabhawati i.e. Rs. 30DG/ to Km. Sharda and Rs. 3000/ to Smt. Prabhawati. In defaulf of payment of fine, Ram Dhruva Dube will undergo two years R.I. He is on bail. He need not surrender presently. His bail bonds shall however be discharged only after he has deposited the fine. The office will remit the file to the court below within a month from today. The C.J.M. will send compliance report in respect of order without fail within six months from today.