N. S. GUPTA, J. Nine accused persons named above, who were convicted by Sri R. N. Rai, IInd Additional Sessions Judge, Ghazipur vide his judgment and order dated 2/th September, 1980 under Section 148/147/304/ 324 323/149, IPC and were sentenced to 9 months/6 months/3 years/, 1 1/2 years/4 months RI under various counts have come up in appeal before this Court. 2. The prosecution story, briefly stated, is as under: 3. Complainant Ram Awadh Pandey PW 1 is a resident of village Kabula, hamlet of village Nathupur, P, S. Sadat, District Ghazipur. The accused appellants, out of whom Ramdhani, Shambhu and Lachchi are real brothers, Rambali and Devi Saran are real brothers, and rest are their close associates, are all residents of village Nathupr P. S. , Sadat, District Ghazipur. Deceased Paras Nath Pandey was the real brother of the complainant Ram Awadh Pandey. Complainant Ram Awadh Pandey had fought a case with regard to plot of land with accused appellant Balli, Harijan, before the Consolidation Courts in which he was defeated. He, thereafter, filed a civil suit with regard to the said plot. The relations of the complainant party on one hand and the accused appellants on the other were strained. A day before the date of this occurrence viz 4-11-1974, at about 8 a. m. Smt. Sahdaiya wife of the accused appellant Budhai, was removing grass from the field of the complainant and causing damage to the paddy crop of the complainant. Complainant Ram Awadh Pandey PW 1 and deceased Paras Math Pandey objected to the removal of the grass by Smt. Sahdaiya and when she did not refrain from doing so, the complainant and Paras Nath Pandey slapped Smt. Sahdaiya. She went up weeping to her house. On the next day viz. 5-11- 1974, at about 5p. m. when the deceased Paras Nath Pandey was cutting fodder in his field situate in village Nathupur, the accused-appellants along with their associates Ram Dhari, Gajadhar and Ram Lal (who have since been acquitted by the trial Court) had formed an unlawful assembly and in prosecution of the said common object of the said unlawful assembly they assaulted Paras Nath Pandey by means of Ballams and Lathis. When the complainant Ram Awadh Pandey, his brother Shiv Dhani (PW 4) and Lalta (PW 5) went to reseue Paras Nath Pandey, the accused-appellant also assaulted them by means of their respective weapons, and caused injuries to them. The prosecution maintained that at the time of the incident, accused Ramdhani, Phool Chand and Ram Prasad were armed with Ballams and rest of the accused persons were armed with lathis. They assaulted the deceased Paras Nath Pandey, complainant Ram Awad Pandey, Shivdhari and Lalta by means of their respective weapon-Ballams and Lathis. As a result of the injuries caused by the accused-appellants by means of Lathis and Ballams the deceased Paras Nath fell down in the field of Ram Chandra Pandey and succumbed to his injuries. 4. A written report Ex. Ka-1 scribed by Shivdhari Pandey on the dictation of Sri Ram Awadh Pandey PW 1 was lodged by Kailash Nath Pandey PW 2 at P. S. , Sadat, District Ghazipur on 6-11-1974, at 7 a. m. , that is, after about 14 hours of the occurrence, the police station being at a distance of about 6 miles from the place of incident. 5. The investigation of the case was taken by Sri Jai Shankar Singh, PW 9, who was then working as Station Officer at P. S. , Sadat, District Ghazipur. He immediately recorded the statement of Kailash Nath Pandey and rushed the scene of occurrence reaching there at 9-05 a. m. There he inspected the dead body of the deceased and prepared inquest report Ex. Ka-9, and sent the dead body of the deceased for post-mortem examination. He thereafter recorded the statement of Shivdhani Pandey, Uma Shanker Pandey, and Satya Narain Pandey. The Inspector Sri Jai Shanker Singh inspected the scene of occurrence and prepared the site plan Ex. Ka.-15. He recovered blood stained and simple earth from the scene of occurrence. He found the fodder in the field in which the incident had taken place. He also recovered a Hainsiya from the said field. He conducted search for the accused persons but they were not available. He recorded the statements of PW 2 Alakh Niranjan and Ram Karan Singh on 7-11-1974 and went to District Hospital where he recorded the statement of Ram Awadh Pandey and Lalta Pandey injured. After completing his investigation, the Inspector Jai Shanker Singh submitted charge-sheet against the accused-appellants. 6. He conducted search for the accused persons but they were not available. He recorded the statements of PW 2 Alakh Niranjan and Ram Karan Singh on 7-11-1974 and went to District Hospital where he recorded the statement of Ram Awadh Pandey and Lalta Pandey injured. After completing his investigation, the Inspector Jai Shanker Singh submitted charge-sheet against the accused-appellants. 6. Autopsy of the dead body of the deceased Paras Nath Pandey was conducted by Dr. Om Prakash the then Surgeon of District Hospital Ghazipur on 7-11-1974 at 4 p. m. Dr. Om Prakash found the following ante-mortem injuries on the person of the deceased : (1) Lacerated wound 1 1/2" x 1/2" X on part of occipital region of head. (2) Incised wound 1 1/2" x 3/" cavity deep 3" left nipple (puncutred wound ). (3) Incised wound 2" x 3/4" x cavity deep 3" medial and parallel. The following internal ante-mortem injuries were also found on the person of deceased Paras Nath Pandey: (1) Incised wound 1 1/2x1/2" on the left ventricle cavity deep outer part corresponding to injuries No. 2. (2) Incised wound 3/4"x 1/4" cavity deep corresponding to injury No. 3 outer part of left ventricle 1 1/2" above to injury No. 1. The doctor opined that the deceased had died due to shock and heamorrhage. 7. The medical examination of Ram Awadh Pandey and Lalta Pandey was conducted by Dr. C. B. Singh on 6-11-1974 at about 11-25 a. m. and 11-45 a. m. respectively. The medical examination of Shiv Dhani was made by Dr. Dinesh Chandra Rai at Primary Health Centre, Saidpur on 6-11-1974 at 5-10 p. m. 8. The injuries found on the person of Ram Awadh Pandey were as under: (1) Lacerated wound 3 1/2"x1/2"x skull deep bleeding present. (2) Lacerated wound 2 1/2x1/2" x scalp deep on the left side head above the left ear. (3) Contusion 3 1/2" x 1/2" on the left scapular region, dark red in colour. (4) Contusion 4" x 1/2" on the right scapular region from the above spine of Rt. , scapular. (5) Swelling 2"x 1 1/2" on the left leg middle. All the injuries were simple, caused by blunt object. About 1/2 day. 9. The injuries found on the person of Lalta Pandey were as under : (1) Stab wound with incised margins 1/2"x1/4"x depth probed on the left side abdomen 1 1/4" below amblicu. , scapular. (5) Swelling 2"x 1 1/2" on the left leg middle. All the injuries were simple, caused by blunt object. About 1/2 day. 9. The injuries found on the person of Lalta Pandey were as under : (1) Stab wound with incised margins 1/2"x1/4"x depth probed on the left side abdomen 1 1/4" below amblicu. (2) Stab wound with incised marigins 3/4"x1/4" muscle deep on the front of neck, 1" below the chin. (3) Lacerated wound 1 1/2"x1/4"x scalp deep on the left side head, 4" above the left eye brow. (4) Lacerated wound 1 1/2"x1/4"x scalp deep on the right side head, 3" above the right ear. (5) Contusion 1/2"x1/4" with abrasion, on the right arm, middle and lateral part. (6) Contusion 1/2"x1/4" on the right hand middle finger. (7) Lacerated wound 1 1/2"x3/4 bone deep on the front of lower part of right leg, with suspected fracture of underlying bones and swelling around it. (8) Swelling 4"x3" on the front of right foot. (9) Contusion 2 1/2"x1/2" on right scapular. (10) Contusion 3"x1/2" on the right side back, 6" below the injury No. 9. (11) Contusion 2 1/2"x1/2" on the left scapular region. All the injuries were simple except Nos. 1, 2 and 7 which were kept under observation. After advise X- ray, right leg, caused by blunt object. Duration about 1/2 day. Advised X-ray the lower part of right leg, injuries Nos. 1 and 2, caused by sharp pointed cutting object. The injuries found on the person of Shiv Dhani. were as under: (1) Lacerated wound 1 cm X0. 5 cm. on front of middle of scalp, 11 cm. from root of nose, scalp depth. (2) Contusion 2 cmx1 cm. on back of right scapula, abrasion on same injury 1 cmx1 cm. All the injuries were simple, caused by blunt weapon. Duration, within one. 10. Charges under Sections 148/302/323/324/149 IPC were framed against the accused-appellants Ramdhani, Phool Chand and Ram Prasad. Accused-appellants Ramdhari, Gajadhar, Ram Lal, Budhai, Hanslal, Shambhu and Lachchi Ram, Balli and Deosaran were charged under Section 147/302/323/324/149, IPC. All the appellants and their other associates namely Ramdhari, Gajadhar and Ram Lal pleaded not guilty, They claimed that on 5-11-1974 In the evening when the accused-appellant Balli was ploughing his field over which there was litigation in between the complainant and the accused appellant Balli during consolidation and before the civil court. All the appellants and their other associates namely Ramdhari, Gajadhar and Ram Lal pleaded not guilty, They claimed that on 5-11-1974 In the evening when the accused-appellant Balli was ploughing his field over which there was litigation in between the complainant and the accused appellant Balli during consolidation and before the civil court. Parashnath Pandey, Ram Awadh Pandey and Lalta and Shiv Dhani went there and resisted Balli from cultivating the same. When Balli asserted, Parasnath, Ram Awadh, Shivdhani and Lalta started beating Balli. When accused-appellant Ramdbani, Budhai tried to save Balli, they too were beaten by the complainant and his brothers. The accused- appellant pleaded that Balli, Ramdhani and Budhai wielded Lathis while Deo Saran wielded spear in exercise of their right of private defence. Balli, Budhai and Ramdhani got their injuries examined in Sadar Hospital, Ghazipur by Dr. C. B. Singh on 6-11-1974 at 1-40 p. m. 1-45 p. m. and 1-55 p. m. respectively and were found to have the following injuries: Balli: (1) Abrasion 3 1/2"x1/4" on the right arm. (2) Abrasion 2"x1/4" on the back of middle of right forearm. (3) Abrasion 1 1/2"x1/4" with swelling around it. (4) Contusion 2 1/4"x1/4" on the left scapular rigion 1 1/4" below the injury No. 4. In the opinion of the doctor, all the injuries were simple and had been caused, Nos. 4 and 6 by blunt object, and the rest by friction and were about 1/2 day old. Budhai : (1) Lacerated wound 1 1/4"x1/6" on the right side head, with swelling 1 1/2"x1" around it, 3" above the right ear. (2) Swelling 2"x1/4" with abrasion 1/2"x1/4" on the back of the upper part of 1eft forearm, 1" below the 1eft elbow. (3) Swelling 3"x2" on the post and medial half of 1eft hand. (4) Swelling 2"x1" on the back side of 1eft ear. (5) Contusion 5"x1/2" on the right scapular region. All the injuries, except No. 3 were found to be simple, injury No. 3 was kept under observation and X-ray examination of the left head was advised. The duration of these injuries, in the opinion of the doctor, was about half a day. Ram Dhani : (1) Lacerated wound 1"x1/4"xscalp deep on the left side head, 4" above the left ear. (2) Swelling 2"x2" on the right side head, 1 1/4" above the right ear. (3) Contusion 1/6"x1/6" on the right little finger. The duration of these injuries, in the opinion of the doctor, was about half a day. Ram Dhani : (1) Lacerated wound 1"x1/4"xscalp deep on the left side head, 4" above the left ear. (2) Swelling 2"x2" on the right side head, 1 1/4" above the right ear. (3) Contusion 1/6"x1/6" on the right little finger. (4) Contusion 4"x1" on the right side back vertical. (5) Contusion 4 1/2"x1/2" on the left side back. 11. All the injuries, in the opinion of the doctor, were simple been caused by blunt weapon and were about half a day old. 12. After needful trial into the matter, the learned Addl. Sessions Judge gave benefit of doubt to accused Ramdani, Gajadhar and Ram Lal to whom the role of exhortation was assigned. He convicted and sentenced the accused-appellants as aforesaid and hence the appeal. 13. I have heard Sri R. Sahai, learned counsel for the appellant and AGA for the State. 14. It was argued on behalf of the accused appellants that from the side of the accused-appellants as many as three persons, namely, Balli, Budhai, and Ramdhani had sustained injuries. It was argued that the members of the complainant party were aggressors and that the accused persons inflicted injuries upon the person of the deceased Parasnath as also injured Ram Awadh Pandey, Lalta Pandey and Shiv Dhani in exercise of their right of private defence. The learned counsel for theiaccused-appel-lants has argued that there was admittedly a litigation in between the accused-appellant Balli and the complainant on the point of field. The occurrence had taken place in the said field from which members of the complainant party tried to oust the accused-appellants forcibly ; that gave rise to the incident in question. As such the learned tri al Judge grossly erred in convicting and sentencing the accused- appellants. I am unable to agree. 15. It is clear from the record of the case that valuable life of Paras Nath Pandey was lost in the occurrence in question and as many as three persons the complainant side, namely, Stivdhani, Ramdhani, and Lalta had sustained injuries. The injuries found on the person of the deceased Paras Nath consisted of three lacerated wound, two incised wounds (Punctured wound) measuring 1 1/2"x3/4"x cavity deep 3" above left nipple, and incised wound 1"x3/4"xcavity deep 3" medial and parallel, to injury No. 2. The injuries found on the person of the deceased Paras Nath consisted of three lacerated wound, two incised wounds (Punctured wound) measuring 1 1/2"x3/4"x cavity deep 3" above left nipple, and incised wound 1"x3/4"xcavity deep 3" medial and parallel, to injury No. 2. These incised wounds could have obviously been caused by means of a sharp edged and pointed weapon like Bhala. The two lacerated wounds were on occipital region of the head. They could have been caused by means of Lathis. It appears that the deceased had died because of these incised and lacerated wounds, which were caused by means af Ballam and Lathis. Similarly the injuries found on the person of Shivdhani Pandey and Ram Awadh Pandey, which were lacerated wounds and contusions could have been caused by means of Lathis. The injuries of Lalta being stab wound, lacerated wounds and contusions could have been caused by means of Ballams and Lathis. These three injured persons Ram Awadh Pandey PW 1, Shivdhani PW 4 and Lalta PW 5 were examined before the court below. They all very clearly stated in their statements on oath before the court below that the occurrence of this case had taken place in their field. in which Chari crop was raised and which crop the deceased Paras Nath Pandey was cutting at the time of occurrence. They all have stated that hearing the cries of Paras Nath Pandey, they reached the spot where the accused appellants were assaulting the deceased. The accused-appellants also asserted that they had caused the injuries. The medical evidence of Dr. C. B. Singh, PW 11 who was working as Medical Officer on 6-11-1974 and who had examined the injuries of Ram Awadh Pandey and Lalta Pandey and that of Dr. Om Prakash PW 12, who had conducted autopsy on the dead body of the deceased Paras Nath fully supports the prosecution case on the point that the injuries found on the person of the injured Ram Awadh Pandey and Lalta and the deceased Paras Nath could have been caused by mean of Lathis and Ballams on the date and time suggested by the prosecution. 16. I should state here that the factum of incident in question is not disputed by the accused appellants. 16. I should state here that the factum of incident in question is not disputed by the accused appellants. Their contention is only this that the occurrence bad taken place on the field of accused Balli which was subject-matter of litigation in between the complainant and the accused appellant Balli. It is not possible for me to believe that the occurrence had taken place on the said field for the reason that the investigating officer Sri Jai Shanker Singh PW 9 who had visited the scene of occurrence on 6-11-1974, that is the next day of the occurrence and who had prepared the site plan Ex. Ka. 15 found the blood stained and simple earth not in the disputed plot of Balli, but in the field of Ram Chandra Pandey. The Inspector Jai Shankar Singh also found a Hansiya in the said field. He also found the fodder which was cut away in that field. If it was a fact that the occurrence had taken place in the field of Balli, I am of the opinion that the investigating officer could not have found any blood in the field of Ram Chandra Pandey. The circumstance that Hansiya was also found lying there fully go to prove that the occurrence of Marpit had taken place in that field. The field over which the parties were litigating and which was claimed by the accused Balli may have given rise to the incident in question but the fact remains that according to the evidence of three injured witnesses as also the eye-witness account of an independent witness like Aiakh Niranjan PW 3, it is proved that at the time of occurrence the deceased Paras Nath Pandey was cutting fodder in his field and that the accused persons had assaulted him in the said field. 17. It is important to note here that a day prior to the occurrence of this case, viz. 4-11-1974, the deceased Paras Nath Pandey and his brother Ram Awadh Pandey PW 11 had slapped Smt. Sahdaiya, wife of accused appellant Balli while she was trying to remove the grass from the field of the complainant in which Dhan crop was raised. Smt. Sahdaiya went weeping to her house and on the next date the occurrence of this case had happened. Smt. Sahdaiya went weeping to her house and on the next date the occurrence of this case had happened. Although Smt. Sahdaiy P. W. 1 entered into the witness box before the court below and has denied these allegations of the prosecution that a day before the date of occurrence, she was slapped by the deceased Paras Nath Pandey and his brother Ram Awadh Pandey but the fact remains that but for some immediate motive, the accused-appellant could have formed unlawful assembly on 5-11-1974 with the common object of assaulting the deceased and his family members. The litigation on the point of plot of land which was said to have been in possession of accused Balli was going on in between the practice for years together. Thus the immediate motive which gave rise to the occurrence in question should have been the matter of assault of Smt. Sahdaiya by the deceased and his brother, which provoked the accused-appellants to this extent so as to form an unlawful assembly with the common object of assaulting the deceased and his family members and that the accused-appellants, three of whom, namely, Ramdhani, Phopl Chand and Ram Prasad, were armed with Ballams and rest ware with lathis did assault to the deceased and his brothers, with a view to take reveage of the assault meted out to Smt. Sahdaiya wife of the accused-appellant Budhai. Smt. Sahdaiya has "stated that she reached at the scene of occurrence duly armed with Ballam and that she also wielded Ballam. If it was a fact that Smt. Sahdaiya DW 1 had also participated in the occurrence in question by means of Ballam. I am of the opinion that the complainant would not have spared her from the array of the accused persons. Obviously when the deceased Paras Nath Pandey had died because of fatal injuries caused to him by means of Ballam, the complainant Ram Awadh Pandey who was himself injured eye-witness of the occurrence and was real brother of the deceased would not have spared the assailants who was responsible for hitting Ballam. It appears to me that Smt. Sahdaiya being the wife of one of the accused-appellant namely Budhai came up before the court below to state false version of the occurrence with a view to save her husband and other members of the family of the husband. It appears to me that Smt. Sahdaiya being the wife of one of the accused-appellant namely Budhai came up before the court below to state false version of the occurrence with a view to save her husband and other members of the family of the husband. The circumstance that Smt. Sahdaiya or any of her family member did not lodge the counter report about the version of the occurrence soon after the occurrence and that the complaint which the accused- appellant Balli sent to the Superintendent of Police Ghazipur Ex. Kha. 5 was considerably delayed fully go to show that the defence version which was put forward by the accused-appellant before the court below was palpably false. 18. It was argued on behalf of the accused-appellant that the first information report about the occurrence was unduly delayed; the occurrence having taken place on 5-11-1974 at 5 p. m. and the first information report being lodged on 6-11-1974 at 7 a. m. that is, about 14 hours of the occurrence and as such the prosecution version should be discarded. It is not possible for me to appreciate this argument of the learned counsel for the appellants for the reason that the police station lay at a distance of about 8 miles from the scene of occurrence when a life was lost in the occurrence in question, right on the spot and when as many as three persons who were all real brothers of the deceased had sustained a number of injuries, the complainant or for that matter his brother Kailash Nath Pandey could not have mustered courage to go to the police station to lodge the report about the occurrence right in the night. Kailash Nath Pandey PW 2 stated that first information report was given to him at about 8 p. m. by Ram Awadh Pandey PW 1 for being sent to the police station but because of the darkness and because of the fact that proper arrangement for transport were not made, he could not go to the police station right in the night. Naturally when one of his brother had died and three persons had sustained a number of injuries, Kailash Nath Pandey could not have rushed to the police station right during the night. The circumstance that the report Ex. Ka. Naturally when one of his brother had died and three persons had sustained a number of injuries, Kailash Nath Pandey could not have rushed to the police station right during the night. The circumstance that the report Ex. Ka. 1 was lodged early in the morning at 7 a. m. in the month of November cannot be regarded to be delayed one. I am accordingly of the opinion that the version contained in the said first information report and stated by the witnesses of fact, namely, Ram Awadh Pandey PW 1, Alakh Niranjan PW 3, Shiv Dhani PW 4 and Lalta PW 5 cannot be regarded to be a tainted one. 19. The circumstance that the injuries found on the person of accused-appellant Budhai and Ramdhani were lacerated wounds, contusions and swelling and further that the injuries found on the person of accused-appellant Balli were only contusions and abrasions and were definitely less grave than those found on the person of the members of the complainant party lands assurance to the belief that the members of the complainant party were not agressors and that the injuries found on the person of these accused persons were the result of scuffle, for which they themselves were responsible. The circumstance that Smt. Sahdaiya did not get her medical examination on 6-11-1974 and she got examined herself only on 7-11-1974 and that the circumstance that on her medical examination only abrasion and contused swelling were found fully go to show that these injuries were manipulated by her. Under the circumstances, I am of the opinion that the accused-appellants and not the members of the complainant party were aggressors and were responsible for the incident in question. 20. The circumstance that insult meted out by the deceased and his brother Ram Awadh Pandey PW 1 to Smt. Sahdaiya, wife of the accused-appellant Budhai on 4-11-1974 ; that is a day earlier to the incident in question by slapping her, provoked the accused-appellants gave rise to this incident fully go to show that the intention of the accused-appellants in inflicting the injuries on the person of the deceased was to cause only such bodily injuries and not to intentionally cause death of deceased Paras Nath Pandey. Thus the accused-appellants Ramdhani, Phool Chand and Ram Prasad were rightly convicted by the learned trial court under Sections 148/304/149/324/323/149, IPC and that the other accused appellants, namely, Balli, Deo Saran, Budhai Hanslal, Shambhu and Lachchi Lal under Sections 147, 304/149, 324/149, 323/149, IPC. 21. Coming to the point of sentence, I find that the learned trial judge had sentenced that accused- appellants Ramdhani, Phool Chand and Ram Prasad to 9 months RI under Section 148, IPC and the remaining six accused-appellants to six months RI under Section 147, IPC. He sentenced all the accused- appellants to undergo RI for a period of three years under Section 304/149, IPC and 1 1/2 years under Section 324/149, IPC and four months RI under Section 323/149, IPC. 22. Keeping in view the number and nature of the injuries caused to the deceased and the members of the complainant party and prior enmity between the parties and the weapon used by them in the occurrence in question, I am of the opinion that the sentence passed by the trial Judge errs towards leniency and as such no modification therein is called for. 23. In the result, I find that the appeal has got no force. The order of conviction and sentence passed by the learned trial Judge are accordingly sustained and the appeal is dismissed. 24. It appears that the accused-appellants Balli, Budhai, Lachchi Ram, Shambhu and Phool Chand, Ramdhani and Ram Prasad have already been taken into custody and are in jail. Let them serve out their remaining part of the sentence according to law. Accused-appellants Hanslal is said to be residing at Bomboy and accused Deo Saran is also living out side. The bail bonds of these accused persons have already been cancelled. The Chief Judicial Magistrate, Ghazipur and the police of District Ghazipur are directed to trace out these two accused-appellants and to commit them to prison to serve out their sentence. 25. Let a copy of this judgment be sent to the Sessions Judge, Ghazipur for needful compliance. Appeal dismissed. .