G. P. Mathur, J. - (1.) 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 conviction under Sections 147, 148 and 323, 324 and 302 all read with Section 149, IPC as recorded by the learned Sessions Judge and the sentences awarded thereunder were affirmed. The appellants were awarded various terms of imprisonment on different counts including sentence of imprisonment for life under Section 302 read with Section 149, IPC.
(2.) 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 first informant PW-1 Ganesh Singh was residing in the village while his elder brother Hira Singh (deceased) was carrying on business in Calcutta. 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. PW-1 Ganesh Singh was a witness of the said incident and his statement had been recorded under Section 161, Cr.P.C. The deceased-Hira Singh had come to his village home two days before the Holi festival which fell on 14-3-1979. 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. The deceased, however, told them that as his brother had seen the incident, he would appear as a witness and would depose against them. The accused felt annoyed and threatened that they would teach him a lesson. 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. 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. A-1 assaulted Hira Singh with the spear and A-4 assaulted him with farsa and after receiving the injuries he fell down. When PW-1 Ganesh Singh tried to save him, A-2 and A-3 assaulted him with lathis. 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 accused thereafter ran away from the scene of occurrence. Hira Singh was carried on a cot 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. Ganesh Singh lodged a written report of the incident at 10.30 p.m. on the same night at P.S. Kotwali giving a complete version of the incident.
(3.) After completion of investigation charge-sheet was submitted against all the five accused and the case was committed to the Court of Sessions. 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. The accused pleaded not guilty and came to be tried. 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-1 Ganesh Singh, who is the first informant and had received injuries in the incident, gave complete version of the incident in his deposition in Court. His testimony was fully corroborated by PW-4 Ramji Singh, who was also named as an eye-witness of the incident in the FIR. PW-3 Mohan Yadav, an injured witness, supported the prosecution case in his examination-in-chief and in cross-examination. As his cross-examination could not be completed it was continued on the next day when he stated that on account of darkness he could not identify anyone. On the request of the learned State counsel, he was permitted to be cross-examined. PW-5 Nand Kishore and PW-6 Ram Pyari did not support the case of the prosecution and they were declared hostile.;