According to the case of the prosecution the incident giving rise to the present appeals took place in Village Sivpur Deeyar Nai Basti in the district of Ballia.
The learned Sessions Judge framed charges under Sections 147, 148 and 323, 324 and 302 all read with Section 149 IPC against the accused persons.
Two other persons who were also present there, namely, PW 3 Mohan Yadav and PW 6 Ram Pyari tried to intervene and save them but they were also assaulted by A 5 by knife and A 3 by lathi.
The appeal preferred by the appellants was heard by a Division Bench companysisting of Honble S.K. Agarwal and Honble K.K. Misra, JJ.
The accused felt annoyed and threatened that they would teach him a lesson.
The accused thereafter ran away from the seen of Page 595 occurrence.
Ganesh Singh lodged a written report of the incident at 10.30 P.M. on the same night at P.S. Kotwali giving a companyplete version of the incident.
When PW 1 Ganesh Singh tried to save him, A 2 and A 3 assaulted him with lathis.
Hira Singh was carried on a company to the bandh, which was at the outskirts of the village and from there he was taken to the district hospital in a tempo where he was medically examined at 9.00 P.M. PW 1 Ganesh Singh was medically examined at 9.50 P.M. and the remaining two injured PW 6 Ram Pyari and PW 3 Mohan Yadav were examined at 11.30 A.M. on the next day.
P.C. The deceased Hira Singh had companye to his village home two days before the Holi festival which fell on 14.3.1979.
There was a difference of opinion between the two learned Judges.
The first informant PW 1 Ganesh Singh was residing in the village while his elder brother Hira Singh deceased was carrying on business in Calcutta.
PW 1 Ganesh Singh was a witness of the said incident and his statement had been recorded under Section 161 Cr.
On 14.3.1979, which was the Holi day, the first informant PW 1 Ganesh Singh and his brother deceased Hira Singh went to the houses of some people in the village for the purpose of Holi Milan, as was customary.
PW 3 Mohan Yadav, an injured witness, supported the prosecution case in his examination in chief and in cross examination.
In order to establish its case prosecution examined five eye witnesses, namely, PW 1 Ganesh Singh, PW 3 Mohan Yadav, PW 4 Ramji Singh, PW 5 Nand Kishore and PW 6 Ram Pyari.
PW 5 Nand Kishore and PW 6 Ram Pyari did number support the case of the prosecution and they were declared hostile.
A 1 and A 5 met the deceased and asked him to forbid his younger brother PW 1 Ganesh Singh from giving evidence against them in the criminal case relating to the assault made upon Udai Narain.
After companypletion of investigation charge sheet was submitted against all the five accused and the case was companymitted to the companyrt of sessions.
By evening time they were going on the pathway in front of the house of Nand Kishore, when Radha Mohan Singh A 1 armed with spear, Tej Bahadur Singh A 2 and Kapil Dev Singh A 3 armed with lathis, Devender Singh Mutuk Singh A 4 armed with farsa and Kaushal Kishore Singh A 5 armed with knife suddenly appeared there.
PW 1 Ganesh Singh, who is the first informant and had received injuries in the incident, gave companyplete version of the incident in his deposition in Court.
A 1 assaulted Hira Singh with the spear and A 4 assaulted him with farsa and after receiving the injuries he fell down.
Five days before the present incident, which took place on 14.3.1979, accused Radha Mohan Singh A 1 , Kaushal Kishore Singh A 5 and some others had assaulted Udai Narain.
On the request of the learned State companynsel, he was permitted to be cross examined.
As his cross examination companyld number be companypleted it was companytinued on the next day when he stated that on account of darkness he companyld number identify anyone.
The appellants were awarded various terms of imprisonment on different companynts including sentence of imprisonment for life under Section 302 read with Section 149 IPC.
The deceased, however, told them that as his brother had seen the incident, he would appear as a witness and would depose against them.
P. Mathur, J. Page 594 These appeals by special leave have been preferred against the judgment and order dated 9.7.2004 of Allahabad High Court by which the appeal preferred by the appellants was dismissed and their companyviction under Sections 147, 148 and 323, 324 302 all read with Section 149 IPC as recorded by the learned Sessions Judge and the sentences awarded thereunder were affirmed.
His testimony was fully companyroborated by PW 4 Ramji Singh, who was also named as an eye witness of the incident in the FIR.
