S.S.BYAS, J. -
(1.)SINCE these two appeals, one by accused Dali Chand and the other by the State, arise out of one and the same judgment of the learned Sessions Judge, Pratapgarh, they were heard together and are disposed of by a common judgment.
(2.)THE Police, Nimbhera submitted a challan against as many as 41 persons in the court of Munsif and Judicial Magistrate for offence punishable under various Sections of the Penal Code. The case was committed for trial to the Court of Sessions. The learned Sessions Judge framed charges Under Section 148, 366, 460, 323, 325, 326, 307 and 302 IPC and also in alternative read with section 149 against all of. them, to which they pleaded not guilty and faced the trial.
In the nut -shell, the case set up by the prosecution in the course of trial was that PW 16 Smt Mangi was married to accused Dalichand. The relations between them were not happy. He deserted her and brought another wife. Smt. Mangi started living with her parents in village Griyawas. A few days before the occurrence, Smt. Mangi was given in Natra -marriage of PW 6 Chandmal and consequently she came to live with him in his house at Nimbhera. This was, reseated to by accused Dalichand and his parents. They threatend Chandmal and the members of his family with dire consequences. In the night intervening between 18th and 19 September, 1977, accused Dalichand went with his companions including his father Mana, other relatives and friends nearly 40 to 50 in number to the house of Chandmal and Lald a siege around it. The miscreants had come to forcibly take away Smt. Mangi. Chandmal and the members of his family woke -up and put resistence by raising cries. It led to the use of violence by the accused party. Chand Mal, has father Phoolchand (PW 1) and Smt. Mangi, (PW 16) were landed blows. Chandmal's mother Smt. Motiya came to intervene but she too was not spared. Accused Dalichand thrust the Gupti in her back. She succumbed to the injury instantcously on the spot. The accused party then dragged Smt. Mangi, lodged her in a truck they had brought and made good their escape. A report of the occurreuce was lodged varbally at about 2.30 A.M. in the same night at police station, Nimbhera by Chandmal. The police blistered a case and investigation ensued. The autopsy of the victim's dead body was performed by Dr. Ravi Bhargava (PW 3) the Medical Jusrist. He found the following injuties: Externat
(1) Incised wound 3 c.m. x 1 cot. x scalp above right eye brow depth (2) Lacerated wound 1 x 1/2 cm. x submental region (3) Stab wound horizontal 2 cm. x 1 cm. x 5 cm. deep with well defused edges, blood and air bubble coming out. Internal (1) The third and 4th ribs fractured. (2) Left lung -punctured posteriority and blood oozing out whole torasic cavity -full of blood on left side.
According to the doctor, the cause of death of Smt. Motiya was puncture of lung from stab wound causing intense heamorrhage and leading to shock. The post -mortem examination report issued by him is Ex P. 1. The injuries of PW 1 Phoolchand, P -W 6 Chandmal, PW 8 Badrilal and PW 17 Narain were also examined. Five injuries including one fracture of skull bone were found on the person of Phoolchand. Three simpls injuries on the person of Badrilal, six simole injuries on the person of Chandmal and one simple injury on the person of Narain were found. The accused persons ware rounded up. Lathies and Gupties were recovered in consequence of the information furnished by them whilst under police custody. During trial, the prosecution examined 18 witnesses and filed some documents. In defence, one witness was examined. On the conclusion of trial, the lear ed Sessions Judge recorded his findings as under:
(1) Accused Dalichand accompanied with many others, went to the house of Chandmal to bring back his wife Smt. Mangi which was not an unlawful object. As such no unlawful assembly could be said to have been formed by the miscreants. None of the objects mentioned in Section 141, IPC to make an assembly as unlawful could be established by the prosecution; (2) The identity of the miscreants other, than of the three viz, Dalichand, Mana and Hukmichand was not satisfactorily established by the prosecution (3) It was accused Dalichand who caused the death of Smt. Motiya by thrusting Gupti in her back. It was his individual act and none else could be saddled with constructive or vicarious liability as the act was not done in pursuance to any intention or common object. The offence made out agaist accused Dalichand was that of murder punishabls under Section 302 IPC (4) Accused Manaram had earned grievous hurt to PW I Phool Chand and simple injuries to others. He was, therefore, liable under Section 325 IPC (5) Accused Hukmichand caused simple injuries to the victims. He was, therefore, liable under Section 323 IPC, and (6) The marriage between accused Dalichand and Smt. Mangi (PW 16) did not dissolve and subsisted on the day of the occurrence.
(3.)AS a result, accused Dalichand was convicted under Section 302 IPC and was sentenced to imprisonment for life and a fine of Rs. 100/ -, in default of payment of fine of further undergo three months' rigorous imprisonment. Accused Mana was convicted under Section 325, IPC and was sentenced to one year's rigorous imprisonment with a fine to further undergo of Rs. 500/ -, in default of the payment of fine three months' like imprisonment. Accused Hukmichand was convicted under Section 323, IPC and was sentenced to two months' imprisonment with a fine of Rs. 500/% in default of the payment of fine to further undergo three months' like imprisonments. The remaining 38 accused persons were acquitted of all the offences they were charged with. Accused Mana and Hukmi Chand were also acquitted of the remaining offences. So also, accused Dali Chand was acquitted of the rest of the offences. Aggrieved against his conviction and sentence, accused Dalichand has filed the appeal. The State applied for leave to appeal against the acquitted persons. Leave to appeal was granted by this Court on 6 -11 -79 against the acquittal of Mana, Nanu, Heeralal, Hukmichand, Mangi Lal, Dhanna, Badrilal, Raghunath, Deokaran and Kacher.