B. N. Agrawal, J. -
(1.)Appellants in these two appeals, who are in all eleven in number, along with thirty three other accused persons were convicted by the trial court under S. 302/149 and 323/149 of the Penal Code and each one of them was sentenced to undergo imprisonment for life and rigorous imprisonment for a period of one year respectively. Appellants of Criminal Appeal No. 808 of 2000 besides other twenty five accused persons were further convicted under S.147 of the Penal Code and each one of them was sentenced to undergo rigorous imprisonment for a period of one year. Appellants of Criminal Appeal No. 809 of 2000 were also convicted under S. 148 of the Penal Code along with seven other accused persons and each one of them was sentenced to undergo rigorous imprisonment for a period of three years. The sentences, however, were ordered to run concurrently. On appeal being preferred by all the forty four accused persons, including the appellants, convictions and sentences of the appellants have been confirmed by the High Court whereas appeal of five accused persons had abated as they died during its pendency. Appeal preferred by the other five accused persons was allowed in part and while confirming their convictions, the sentences awarded against them have been set aside on the ground that they were juvenile. One Darbari has been acquitted by the High Court as his plea of alibi found favour with it. The other accused persons have been acquitted as the prosecution failed to prove their participation in the crime beyond reasonable doubt.
(2.)Prosecution case, in short, was that on 4th May, 1976 the two deceased Umrao and Juggey, who were residents of village Bamhauri, after taking their breakfast had gone to Madawara market. At about 12.00 or 12.30 p.m. they came back from there by a bus and were sitting in their Khallihan underneath a neem tree. Gajraj (PW.4), Gulab Rani (PW.2) (wife of Umrao) and Kirat (PW.5) were also present in the vicinity. PW.5 thereafter had taken his cattle to the village pond. PW.2. and her son-PW.4 went to drink water in the hutment of one Gore Lal. When she was drinking water, Umrao's daughter Phulbai came there and informed her mother-PW.2 that a large number of persons had assembled in the baithaka (an assembly hall) of one Modley, were holding guns, lathis, axes and ballams etc. and saying that "Umrao and Juggey had come, let us kill them". Hearing this, PW.4 and PW.2 came out of the hut and saw the accused persons coming towards them from three sides. Ratan, resident of village Ratanpur, was standing on the road leading to the school, Ratan Modley stood on the road leading to Chittar, both holding guns, and blocked the passage. Ratan Modley was exhorting other accused. In all, forty four accused persons came there, out of whom, appellants Nathu, Meharban, Bhagirath, Girdhari and accused Gopi, Bahadur and Babu, in all seven, were armed with axes, appellant Dayaram and accused Darbari and Vijay with ballams, accused Ratan, resident of village Ratanpur, and Ratan Modley with guns and other thirty two accused including the other appellants with lathis. All of them started assaulting Umrao and Juggey with axes, lathis and ballams underneath the neem tree. When PW.2, PW.4 and Gore Lal tried to save them, they were also assaulted by some of the accused persons. PW.4 was assaulted by accused Sukh Singh, Jawahar, Ratan, resident of Madawara, and appellants Uttam and Girdhari with lathis. PW.2 was assaulted by appellant Uttam and accused Bahadur with lathi and axe respectively. In the midst of assault, Umrao somehow managed to escape towards the village. He was chased and thrown on the ground by appellants Meharban, Bhagirath, Dhan Prasad and Sura besides accused Gopi and Ganiya and assaulted by them with axes and lathis. In the course of the assault, witnesses Mulchandra, Nathu, Panchey, Lakshman, Rammu and Khuman came to the place of occurrence and intervened. Lakshaman asked the assailants, "you had already finished two persons, will you kill the whole family", whereupon the assailants ran towards the village. While running away accused Bahadur turned back and struck a blow of axe on the head of Juggey and thereafter they fled away. During the occurrence, two persons, namely, Umrao and Juggey lost their lives and two members of their family viz., PW.2 and PW.4 besides one Gore Lal sustained injuries. Stating these facts, First information Report of this incident was lodged by PW.5 at Police Station Madawara at 2.35 p.m. in which forty four accused persons, including the appellants, were named.
(3.)The police after registering the case took up investigation and on completion thereof submitted charge-sheet, on receipt whereof, the learned Magistrate took cognizance and committed the aforesaid forty four accused persons, including the appellants, to the Court of Session to face trial.