R. N. RAY, J. Against the judgment and order of sentence passed in S. T. No. 189/79, Krishna Pal Singh preferred criminal revision and according to revisionist the sentence awarded was dis proportionate for the offences committed by the accused persons and as such he has prayed for enhancement of the sentence so the revision application is also being taken up for due consideration along with this criminal appeal No. 2883 of 1980. 2. All the accused convicts have preferred this appeal against the judgment and order of sentence dated 10-12-80 passed by Sri G. D. Dubey, learned I Additional District & Sessions Judge, Jaunpur which. . . . . . . from crime No. 138 dated 10-12-78 of P. S. Badlapur, district Jaunpur. Originally the case stated as per the F. I. R. under Sec tions 147,148,323 and 304 Part II. Later on I Additional. Sessions Judge, Jaunpur, Sri G. D. Dubey framed the charges under Sec tion 147, 323 and 149,i. P. C. against all the accused persons and against Keshav Prasad under Sections 302 and 149, I. P. C. and against his father Katak Bahadur Singh under Section 302 and 149 I. P. C. and the remaining accused persons were also charged under Sections 147, 323, 302, 149 I. P. C. 3. All the accused persons pleaded not guilty to the charges and claimed to be tried. 4. The prosecution story in brief is that a "marpit" had taken place at about 5 p. m. on 9-1z-78 with Keshav Prasad Singh and others. The F. I. R. was lodged and investiga tion was pending. Four witnesses, namely, Noor Mohammad, Anantoo, Musaphir and Shobhnath, had filed their affidavits on 9-1-79 in favour of the accused persons. It has been alleged that on 14-1-79 at about 11 a. m. all the accused persons came armed with lathi and ballam and surrounded the house of Sarjoo Singh situated in village Savansa, P. S. Badlapur, District Jaunpur. They started throwing brick bats on that house. Awadh Narain Singh, brother of Sar joo Singh, came out of the house and asked as to why they were behaving in that man ner, then the accused persons started abus ing and said that Sarjoo Singh was a witness in the case started by Sri Jai Prakash Singh but he should not give his evidence but Awadh Narain Singh refused that proposal. The witnesses, Satya Deo, Man Bahadur Singh, Raj Bahadur Singh, Raj Kishore Singh had arrived at the spot. Keshav Prasad Singh gave a lathi blow on the head of Awadh Narain Singh and consequently he received injury on his left eye, he had also received injury on the right eye. Awadh Narain Singh had received some injuries of brick bats. When Awadh Narain Singhs son Krishna Pal Singh wanted to save his father, he was also given lathi blow by Jagnarain and others and thereafter the accused per sons ran away. 5. P. W. 1 Sarjoo Singh wrote a report which was marked as Ext-ka-5. Awadh Narain was taken on a cot to Maharajganj and thereafter Awadh Narain and Krishna Pal Singh were taken to the police Station, they reached there at 3 p. m. Sri Jagdish Mishra constable Moharrir prepared a chik report which was marked as Ext-ka-9 and a case was registered under Sections 147,148, 323, 326 and 325, I. P. C. and an entry was made in the G. D. which was marked as Fjrt-ka-10. 6. Sri Rajendra Singh Chauhan took the investigation in his hand after the registration of the case in the G. D. and the injured persons were sent to P. H. C. Badlapur and the Investigating Officer did not take any further step on that date. 7. P. W. 4, Dr. V. P. Singh examined Awadh Narain Singh at 3. 15 p. m. and the same day and found the following injuries on his persons: 1. Lacerated wound over right eye ball (bleeding from eye ball and loss of vision ). Left eye blackening of both upper and lower palpebra and swelling on left side of case (5 2/3x5" ). 2. Swelling and blackening of both upper and lower palpebral of right eye in an are a of 2"x2. 5". 3. Contusion (redish) 6" x 7" on left side of scalp 2" above the right eye brow. 4. Lacerated wound on left side of fore-head 5" x 0. 1" above the left eye brow. The doctor has prepared the injury report (Ext-ka-6 ). 8. The Doctor examined Krishna Pal Singh at 4. 15 p. m. the same day and he prepared the injury report Ext-ka-7 and found the following injuries on his person: 1. Contusion abrasion 2" x 0. 2" -redish 6" above the left elbow joint. 2. Abrasion 5" x 0. The doctor has prepared the injury report (Ext-ka-6 ). 8. The Doctor examined Krishna Pal Singh at 4. 15 p. m. the same day and he prepared the injury report Ext-ka-7 and found the following injuries on his person: 1. Contusion abrasion 2" x 0. 2" -redish 6" above the left elbow joint. 2. Abrasion 5" x 0. 2" on the front of right thigh (redish) 11" above the right knee joint. 3. Swelling on right ankle 3" x 2" on inner aspect (redish ). 9. P. W. 4 Dr. V P. Singh had found the injuries of Awadh Narain Singh and Krish na Pal Singh fresh and he was of the opinion that these injuries could be caused by blunt weapon. Since the condition of Awadh Narain Singh was serious so his case was referred to District Hospital, Jaunpur. Awadh Narain Singh was taken to District Hospital. He expired in the night of 16-1-1979. 10. The Investigation Officer reached the place of occurrence on 16-1-79 and in terrogated Sarjoo Singh and others and recorded their statements. He found blood at the spot. He took the sample of the blood in his possession and prepared the memo (Ext-ka-13) and the Investigating Officer also prepared the sketch map which was marked as Ext-ka-12. The Investigating Of ficer also found some brick bats near the kitchen of Sarjoo Singh and thereafter he went to the house of accused and arrested Ambika Singh, Rakesh and Jagnarain Singh. The case was converted to Section 304, I. P. C. on 17-1-79 after the death of Awadh Narain Singh, an entry about that fact was made in the G. D. The blood stained earth (Ext-1) and plain earth (Ext-2) were sent to the Chemical Examiner for examina tion and report. The remaining accused sur rendered in court. The Investigating Officer had interrogated them and submitted charge- sheet against them on 4-3-79. The charge-sheet was marked as Ext-ka-15. It may be noted in this connection that after the receipt of the information regarding the death of Awadh Narain Singh, the inquest report (Ext-ka-8) was prepared by Ram Jatan Yadav, S. I. on the morning of 17-1-79. He had prepared the necessary papers and sent the dead body in a sealed cover through constables Panna Lal and Sarda Prasad. Dr. He had prepared the necessary papers and sent the dead body in a sealed cover through constables Panna Lal and Sarda Prasad. Dr. R. N. Tiwari conducted the post mortem ex amination on the dead body of Awadh Narain Singh at 4. 30 p. m. on 17-1-79 and found that the deceased had a frail body and was about 65 years old. According to the doctor the death was caused on account of coma which resulted due to ante-mortem injuries on his head. According to the doc tor the injuries were sufficient to cause death in ordinary course. The doctor prepared the post mortem report which was marked as Ext- ka-17. 11. The prosecution examined 12 wit nesses and out of which P. W. 1 Sarjoo Singh, P. W. 2 Krishna Pal Singh and P. W. 3 Raj Bahadur Singh were the eye-witnesses to the occurrence. 12. Awadh Narain Singh, was ex amined by Dr. V P. Singh, who later on was sent to the District Hospital by P. W. 6, Ram Jeet Yadav and Dr. R. N. Tiwari conducted the post mortem examination on the dead body of Awadh Narain Singh. P. W. 10 constable Panna Lal took the dead body to the mortuary for post mortem examination P. W. 8 was Malkhana Moharrir of District Jaun pur at that time who had proved the transit of blood stained earth from his Malkhana to the office of C. M. O. He has also proved that those articles were brought in his Malkhana by the constable Ayesh Mohammad P. W. 5 on 8-7-79 from P. S. Badlapur. P. W. 9 Nand Lal, clerk of the District Hospital, deposed that he had sent the blood-stained earth to the Chemical Examiner. The report of the Chemical Examiner was marked as Ext-ka-21. 13. All the accused persons were re lated to each other and their relationships have not been denied. 14. The Investigating Officer reached the place of occurrence on 16-1-79 and in terrogated Sarjoo Singh, Krishna Pal Singh, Satya Deo Singh and other witnesses and prepared the site plan which was marked as Ext-ka-12, which indicated that the house of Sarjoo Singh faced towards the east. Towards south-east corner of the house there existed kitchen. Just in front of the house of Sarjoo Singh there was a mango tree. Towards north east there was a marha. Towards south-east corner of the house there existed kitchen. Just in front of the house of Sarjoo Singh there was a mango tree. Towards north east there was a marha. The investigating Officer had noted in the site-plan that the main hamlet of Sawansa was situated at a distance of one and half furlongs from that house. Towards south east of the aforesaid kitchen there existed a tube-well of Sarjoo Singh. Just by the side towards south of that tube-well a foot-path is there which runs east to west. 15. P. W. 1 Sarjoo Singh stated about the motive of the offence and according to him the dacoity had taken place village Maharajganj in 1939-40. Some looted properties of the said dacoity were recovered from the possession of Katak Bahadur Singh and Mahabir Singh and on the evidence of the grand-father of Sarjoo Singh, Mahabir Singh was convicted. That fact was not specifically challenged by the accused and when that fact was put to ac cused while being examined under Section 313, Cr. P. C. , they simply pleaded ignorance. There was long standing enmity between them. The second incident relating to ag gravation of enmity was said to have taken place in 1953 and according to Sarjoo Singh P. W. 1, a case under Section 324,i. P. C. was started by Ambika Singh against the father of Sarjoo Singh, Awadh Narain Singh, Shyam Deo, Dan Bahadur and Ganga Singh and the accused persons of this case, were acquitted and this fact also was not chal lenged in cross-examination. 16. The third incident related to 9-12-78 and according to P. W. 1 Sarjoo Singh, Ganga Prasad Singh was watching his field on 9-12- 79 and all the accused persons except Jagat Narain and Shashi Prakash had assaulted Ganga Prasad Singh and his son Om Prakash and a F. I. R. was lodged by Jai Prakash at the police station over that inci dent. So it is clear that there was a long standing enmity between the parties. Ac cording to the injury report of Dr. V. P. Singh and Dr. R. N. Tiwari it clearly indicated that Awadh Narain had one contusion and one lacerated wound on his forehead. The post mortem report of Dr. R. N. Tiwari indicated that the frontal parietal and temporal bones were fractured. 17. Ac cording to the injury report of Dr. V. P. Singh and Dr. R. N. Tiwari it clearly indicated that Awadh Narain had one contusion and one lacerated wound on his forehead. The post mortem report of Dr. R. N. Tiwari indicated that the frontal parietal and temporal bones were fractured. 17. From the prosecution case it ap peared that Keshav Prasad assaulted Awadh Narain Singh by lathi and the injuries of Awadh Narain Singh were ante-mortem ac cording to Dr. R. N. Tiwari and injury No. 3 was sufficient to cause his death and those injuries might have been caused by blunt weapon such as lathi. The evidences of eye witnesses get support from the evidence of the doctor VP. Singh whcrexamined Awadh Narain Singh while he was in injured condi tion and subsequently by Dr. R. N. Tiwari had held that post mortem examination on the deadbody of Awadh Narain Tiwari. There was enough evidence that the accused appellants had assaulted Awadh Narain Singh and accused persons came armed with lathis. 18. P. W. 2 Krishna Pal Singh was an injured witness. The defence had alleged that he did not receive any injury and those injuries were created by friendly hands. It has been categorically stated that Jagat Narain only assaulted him when he went to save his father. All the accused persons went there for illegal purpose to pressurise Sar joo Singh to file an affidavit in their favour and they were armed with deadly weapons and trespassed into the house of Sarjoo Singh, so the accused persons were held guilty under Section 147, I. P. C. and Jai Narain Singh had been rightly held guilty under Section 323, I. P. C. for causing injuries on the person of P. W. 2, Krishna Pal Singh. So far as this witness is concerned, he was assaulted on the vital part of the body by deadly weapon such as lathi. 19. This factum was amply evidenced by P. W. 1, P. W. 2 and P. W. 3. So far as this witness is concerned, he was assaulted on the vital part of the body by deadly weapon such as lathi. 19. This factum was amply evidenced by P. W. 1, P. W. 2 and P. W. 3. This incident took place when both the parties were ex changing abusing words and they had both ballam and lathies with them but only Keshav Prasad assaulted Awadh Narain which resulted in his death in the hospital one day after the incident, so we are of the opinion, that the learned lower court below was perfectly correct in holding them guilty under Section 304, Part II, I. P. C. , so we do not find any merit regarding the enhance ment of the punishment as prayed for by Krishna Pal Singh, by preferring criminal revision against the judgment and order of sentence, as such the criminal revision fails. However, on scrutiny of evidences we hold that Keshav Prasad assaulted Awadh Narain which resulted his death in the hospital and he has been rightly held guilty under Section 304, Part II, I. P. C. and since the assault was made by lathi on the person of Awadh Narain and he died in the hospital one day after the incident so we do not think that the offence should be converted under Section 302,i. P. C. for the enhancement of sentence. In the circumstances, the revision applica tion fails against Keshav Prasad. However, on scrutiny of the evidences, we do not find other accused persons except Jagat Narain Singh guilty under 323/149, I. P. C. and they are acquitted of the said charges. Jagat Narain Singh assaulted P. W 2 with lathi which was amply proved by the evidences of P. W. 1, P. W. 2 and P. W. 3 and also cor roborated by the evidence of the doctor who examined the injured PW 2. All the accused persons went there for illegal purpose to pressurize Sarjoo Singh to get an affidavit filed in their favour and they were armed with deadly weapons and trespassed into the house of Sarjoo Singh so all the accused persons were rightly held guilty for the of fence under Section 117, I. P. C. and the sen tences awarded for the offence under Sec tion 147, IPC against all the accused persons are to stand. Sentence awarded to Jai Narain Singh under Section 323, I. P. C. is also to stand. Both the sentences shall run concur rently. We concur with the findings of the learned court below relating to holding ac cused Keshav Prasad guilty under Section 304, Part II, I. P. C. , All the accused persons are entitled to set off under Section 428, Cr. PC. Hence we order that the appeal of Keshav Prasad fails and he is to serve out the sentences as awarded by the learned court below and other accused persons are held guilty under Section 147, I. P. C. only and Jai Narain Singh is held guilty under Section 323, I. P. C. and also under Section 147, I. P. C. and he is to suffer the sentences accordingly as awarded by the learned court below. 20. In the result, the appeal stands partly allowed. All the accused persons shall surrender in the court below within 7 days and if they do not surrender then the learned C. J. M. concerned shall take ap propriate steps to get them into custody and send them to jail to serve out the sentences. 21. Exhibits shall be disposed of as per rules. Appeal partly allowed. .