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The author of the FIR is one Dadan Ji Tiwari. The deceased is one Kalka Tiwari, father of the complainant. The occurrence took place in the disputed field situated in village Bighi PS Bansdeeh Road District Ballia over which, it is stated, both the parties were horn-locked in litigation. According to the prosecution case, on the day of occurrence i.e. 6.5.2001 at about 11 a.m, the appellant Namonarayan Upadhyaya alongwith others came at the the disputed field atop a tractor and started uprooting onion crop sown on side of the field with the avowed intention of ploughing the field and when the acts of the appellants were resisted by the complainant and the persons present with him, the appellants initially used filthy language and thereafter mounted assault using Lathi and Ballam on the complainant. In the meantime, appellant Namo Narayan came forward and exhorted Santosh to run the tractor over the complainant and others and upon being exhorted, the aforesaid Santosh started the tractor which was painted red and ran the same over the deceased, father of the complainant who died instantaneously. The occurrence it is further alleged, was witnessed by many people of the village including Rajnath Tiwari, and Vijai Narayan Tiwari. After committing occurrence, it is further alleged, the accused persons ran off on tractor towards their village Kripalpur.

In order to appreciate rival contentions of learned counsel for the parties it is necessary to examine the evidence brought on record by the prosecution.

P.W. 1 Daddan Ji Tiwari, first informant, deposed that his agricultural property admeasuring one acre and 24 Bighas lay at a distance of one and half km on west southern side of the village bearing revenue arazi no 888. He further deposed that at the time of the occurrence, there was some revenue case pending between Nathurni Tiwari and Suraj Deo Tiwari and Shyam Sunder Upadhyay. After the death of his grand father, Kalika Tiwari was prosecuting the case and on account of that litigation, Shyam Sunder Upadhyay, Namo Narayan Upadhyay and his family members were at loggerhead. It is further deposed that in the above mentioned field, Namo Naryan and others wanted forcible possession of 62 decimal of land which was subject matter of litigation pending before the Commissioner, Varanasi. Santosh Upadhyay, it is further deposed, had sown onion and wheat crops in the said land measuring 62 decimal. In the land which was in their possession, onion and wheat crop had been sown. It is further deposed that on the day of occurrence at about 11 am, he, his father Kalika Tiwari, brother Madan Ji Tiwari and Dharmendra Tiwari had gone to dig out onion from their plot. On reaching the field, they saw Namo Narayan Upadhayay, Shyam Sunder Upadhyay, Radheyshyam Upadhyay and Santosh Upadhyay and one boy who was dumb whose name he did not know and one Sanjay Upadhya and Shivanand Yadav of their group armed with Lathi and spear who were engaged in digging out onion using tractor upon which he and his father, brother Madan and Dharmendra asked to desist from digging onion. Instead of heeding to them, appellant Namo Narayan, exhorted Shivanand Yadav who was armed with Bhala, Shyam Sunder who was armed with Danda and Radhey Shyam and Goonga (Deaf and dumb fellow) and Sanjay who were armed with Danda and Santosh Upadhyay who was drivier's seat in the Tractor, charged on them assaulting him, his father, brother Madan and Dharmendra. His father sustained Bhala injuries and fell down. Thereafter, Namo Narayan exhorted Santosh to crush his father under the Tractor. Santosh who was driving Tractor having plough ran the same over his father by Tractor who died on the spot. Apart from his father, his brother Madan Tiwari also sustained injuries inflicted by Bhala while he and his brother sustained Lathi injuries. The incident, it is deposed. was witnessed by Vijay Tiwari, Rajnath Tiwari. One front wheel of the Tractor was broken. The accused persons escaped to their village Kripalpur alongwith the vehicle. After the incident he alongwith his brother Madan Tiwari came back to his house and dictated the report which was scribed by Mukteshwar Tiwari and after reading the same he affixed his signatures, which is Ext. Ka-1. He lodged the report at police station Bansdeeh Road. After recording his statement, inquest on the dead body of his father was prepared and the dead body was dispatched for post mortem examination. He alongwith his brother Madan Tiwari and Dharmendra were referred to District Hospital Ballia and they were admitted and medically examined there.

P.W. 2 Dharmendra Tiwari deposed that on the day of occurrence while he, his father Kalika Tiwari, brother Madan Ji Tiwariand Daddan were engaged in digging out the onion sown in their field, they saw that Namo Narayan Upadhyay, Shyam Sundar Upadhyay, Radhey Shyam Upadhyay, Santosh Upadhyay, Gunga, Sanjay Upadhyay of village Kripalpur and Shivanand Yadav of village Katahi arrived at the scene armed with Lathi and Danda and started forcibly digging out onion from the field. When they resisted them, one of the accused namely, Namo Narayan exhorted accused Shyam Sundar, Radheyshyam, Sanjay Upadhyaya, Gunga, Sanjay Upadhya and Shivnand Yadav mounted assault on his father, brother Madan Ji Tiwari and Daddan Tiwari with Lathi and Bhala. His father and brother Madan Ji Tiwari sustained Bhala injury which was wielded by Namo Narayan and Shivanand. After sustaining the Bhala injury, his father had fallen in the field and at that time Namo Narayan exhorted Santosh who was driving the Tractor to run over the Tractor on his father and acting on the exhortation Santosh Upadhyay drove the Tractor which was attached with a plough at a high speed and ran the same over his father who died instantaneously. He further deposed that in the incident he and his brother were assaulted by the accused pershons and they received injuries. The incident was also witnessed by Vijay Narayan Tiwari and Rajnath Tiwari. He alongwith Vijay Narayan and Rajnath Tiwari stayed back with the dead body of his father while Madan Tiwari and Daddan Tiwari left for police station to lodge the report. He and his brother Madan and Daddan were medically examined in District Hospital Ballia. On the next day of the occurrence, his statement was recorded by the police at the District Hospital.

In connection with the above submission of learned counsel for the appellants, we have scrutinised the evidence on record. The case of the prosecution as would transpire from a perusal of the F.I.R. is that occurrence took place in plot no. 888 of which 62 decimal land was in possession of Santosh and in which wheat and onion crop had been sown. It is manifested from the statement of P.W. 1 that in regard to this plot, a litigation was being slugged out between his family and accused persons. He however gave the explanation that the occurrence took place when the accused persons were uprooting onion crop which they resisted and that the accused persons who were variously armed, mounted assault resulting in the death of the deceased and injuries to injured witnesses. P.W. 2 Dharmendra Tiwari also lent support to the testimony of P.W. 1. His deposition quintessentially was that accused persons arrived variously armed in the plot where onion crop was sown and started uprooting onion and when they have protested, on the exhortation of Namo Narain Upadhyay, Shyam Sunder Upadhyay, Radhey Shyam Upadhyay, Santosh Upadhyay, Goonga, Sanjay Upadhyay and Shivanand Yadav started assaulting his father, brother, mother and Daddan with lathi and Bhala. His father and brother Madan fell on the ground sustaining Bhala injuries which was inflicted by Namo Narain and Shivanand Yadav and on the exhortation of Namo Narain, Santosh Upadhyai ran the Tractor over his father Kalika Tiwari and in the occurrence, he also sustained injuries on account of assault by the accused persons. P.W. 3 Vijay Narain Tiwari also countenanced the prosecution case in all material aspects and put weight to the testimony of P.W. 1 and P.W. 2.