- (1.) This appeal has been preferred against the final judgment and order dated 13.01.2006 passed by the High Court of Judicature at Allahabad in Government Appeal No. 159 of 1981 whereby the Division Bench of the High Court allowed the appeal filed by the State and set aside the order of acquittal of accused persons dated 08.09.1980 passed by the First Additional Sessions Judge, Etawah in Sessions Trial No. 77 of 1979.
(2.) The facts and circumstances giving rise to this appeal are as under: (a) Moolu Singh and Kunji were real brothers. Prayag Singh, Pahunchi Lal and Lalta Prasad were sons of Moolu Singh. Badan Singh and Gaya Prasad were sons of Kunji. Ratan Singh is the son of Prayag Singh and Nathu Ram and Rajendra Singh were sons of Pahunchi Lal. Jaswant Singh was the son of Badan Singh and Ujagar Singh was the son of Gaya Prasad. (b) On 21.12.1978, at about 9.00 a.m. one Nathu Ram-the Complainant and his father Pahunchi Lal were ploughing their field situated at Har Balapur P.S. Bharthana. At that time, the Complainant's uncle - Gaya Prasad along with his son Ujagar Singh were sowing their field which was nearer to the field of the Complainant. At some distance, his uncle - Prayag Singh along with his son Ratan Singh were also ploughing their field. (c) There was a water channel passing towards north of their fields and Mahipal Singh-the accused was irrigating his field through that channel. Since water was overflowing in the channel and entering into the sowed field of the Complainant's uncle-Gaya Prasad, he asked Mahipal Singh to repair the same. On this issue, an altercation took place between Mahipal Singh and Gaya Prasad. The accused Mahipal Singh left the place saying that he would see him. (d) In the meanwhile, Lalta Prasad, first cousin of Gaya Prasad and his nephew Jaswant Singh also reached there. At about 11.00 a.m., Nathu Ram and his father Pahunchi Lal resumed ploughing their field. At that time, accused Mahipal Singh and his brothers Shyam Babu and Tej Ram armed with guns, Indal having rifle and Bhabhooti with lathi along with their father Ramjit with spear and Babu Ram son of Bhabhooti with countrymade pistol reached there. Mahipal Singh, standing near Gaya Prasad, told his associates that he was behaving in an arrogant manner and asked them to make an assault on him. Thereupon, Shyam Babu and Mahipal Singh fired at Gaya Prasad with their respective guns thereby causing injuries to him. On seeing this, Ujagar Singh son of Gaya Prasad, rushed to save his father and he also sustained pellet injuries by Tej Ram. At that time, Prayag Singh, Pahunchi Lal, Lalta Prasad and Jaswant Singh rushed to the scene of occurrence. Then Ramjit and Bhabhooti shouted that they should also be killed and immediately Indal fired at Jaswant Singh and Prayag Singh using rifle and Babu Ram and Mahipal Singh fired at Pahunchi Lal and Lalta Prasad with country made pistol and gun respectively. All of them fell down in the field of Badan Singh except Prayag Singh, who received injuries. On hearing the hue and cry, Rajendra Singh brother of Nathu Ram and several other persons rushed to the spot and challenged the accused persons. On seeing them, all the accused persons fled away. Due to fatal injuries, Ujagar Singh, Jaswant Singh, Gaya Prasad, Pahunchi Lal and Lalta Prasad died on the spot and Prayag Singh received grievous injuries. (e) On the same day, i.e., on 21.12.1978, an FIR was lodged by the Complainant - Nathu Ram, son of Pahunchi Lal, at P.S. Bharthana, Etawah against the above-mentioned 7 persons under Sections 147, 148, 149, 307 and 302 of the Indian Penal Code, 1860 (in short 'the IPC'). (f) On 06.03.1979, after filing of charge sheet, the case was committed to the Court of Sessions and numbered as Sessions Trial No. 77 of 1979. The First Additional Sessions Judge, Etawah, by judgment dated 08.09.1980, acquitted all the 7 accused persons holding that the prosecution has failed to prove beyond reasonable doubt the guilt of the accused persons in the case against them. (g) Being aggrieved, the State filed Government Appeal No. 159 of 1981 before the High Court. Pending appeal in the High Court, 4 accused persons, viz., Ramjit, Mahipal Singh, Indal and Bhabhooti died due to natural death and the case against them stood abated. (h) On 13.01.2006, the High Court allowed the appeal filed by the State and convicted the remaining 3 accused persons, viz., Shyam Babu, Babu Ram and Tej Ram under Sections 148, 307 and 302 read with Section 149 of IPC and sentenced them to undergo rigorous imprisonment under various heads mentioned above including life sentence and all the sentences were to run concurrently. (i) Being aggrieved by the judgment of the High Court, the remaining 3 accused persons preferred an appeal before this Court under Section 379 of the Code of Criminal Procedure, 1973 (in short 'the Code'). During the pendency of the appeal, 2 accused persons, viz., Tej Ram and Babu Ram died and appeal against them stood abated and only one accused, Shyam Babu is before this Court facing conviction and sentence.
(3.) Heard Mr. V.K. Shukla, learned counsel for the appellant-accused and Mr. Ardhendumauli Kumar Prasad, learned counsel for the respondent-State. Discussion;