- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court dismissing the appeal filed by the appellants. The trial Court i.e. learned IInd Additional Judge, Banda by his judgment dated 25.3.1981 found the appellant Krishna guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC ) and Section 307 and sentenced him to undergo RI for life and seven years respectively for the aforesaid offences. Though he was found guilty of offence punishable under Section 323 IPC read with Section 34 IPC no separate sentence was awarded to him. Accused Sumera who was convicted for offences punishable under Section 302, 307, 323 read with Section 34 IPC has died. Appellant Kaira was similarly convicted. Sentence of imprisonment for life, three years and six months were respectively imposed for the above said offences. All the three accused persons preferred an appeal but since the appellant Sumera died during the pendency of the appeal, appeal was held to have abated so far as he is concerned.
(3.) Background facts as projected by prosecution in a nutshell are as follows: Appellants Krishna and Kaira are real brothers and are the sons of Sumera. Ram Manohar (PW-1) complainant and Chunua Chamar (hereinafter referred to as the deceased ) were real brothers. Both the parties are residents of the same village Piprenda, P.S. Tindwari, District Banda and are neighbours. Appellant Kaira borrowed Rs.350/- from deceased about 5 month prior to the occurrence, i.e. 8th July, 1980, about 7.15 a.m. Two days prior to the occurrence deceased demanded his money from Kaira, who not only refused to return the money but also denied to have borrowed any money from the deceased. On the following day again deceased demanded his money from Kaira and being enraged by this, accused Sumera, Krishna and Kaira quarrelled with deceased and Ram Manohar and chased to beat them. The deceased and Ram Manohar somehow managed to escape themselves by running away. On the fateful day i.e. 8.7.1980, deceased alongwith Ram Manohar (PW-1) in the morning after attending the call of nature went to Shripal Kori for seeking his advice as what should be done in the matter. Shripal advised him not to fight, but to lodge a complaint with the police. From the house of Shripal, deceased and Ram Manohar came to their house and without taking breakfast both of them proceeded to police outpost Chilla. Smt. Ram Pyari (PW-3), wife of deceased also followed them. It was about 7.15 a.m. when deceased and Ram Manohar reached near the field of Chunua Kanchi, which was in the west of rasta, accused Krishna armed with "Barchi", Sumera and Kaira armed with lathis came there from the eastern side. Accused persons started abusing deceased and his brother Ram Manohar. Deceased and Ram Manohar retaliated by abusing them. Shiv Baran Singh (PW-2) reached there. Sumera gave lathi blow to deceased. When Shiv Baran Singh (PW-2) tried to intervene, appellant-Kaira gave lathi blow which hit him causing injury to his hand. When Ram Manohar (PW-1) tried to save and intervene Krishna gave Barchhi blow causing injury to him. Appellant-Krishna exhorted to eliminate Chunua. Thereupon Sumera gave lathi blow to deceased and Kaira also gave lathi blow. Krishna gave barchhi blow causing injury to deceased who fell down and died then and there in the field of Chunua Kanchi. On the hue and cry Surajpal, Arjun and many other villagers collected there. These persons chased the accused who run away towards the west. Leaving Smt. Rampyari near the dead body, after getting report drafted from Dasharath, Ram Manohar (P.W.1) accompanied by Shiv Baran Singh (PW-2) injured and, other village persons, proceeded to the police out post Chilla, P. S. Tindwari, District Banda which was about 18 or 20 kms. from the village Piprendha. There Ram Manohar (PW-1) handed-over the written report. On the basis of written report a case crime no. 123 of 1980 was registered at 8.45 am. on 8.7.1980, under Sections 302, 307, 504 IPC against all the three accused i.e. Sumera, Krishna and Kaira. Om Shankar Shukla (PW-6), I.0. of the case who was Incharge of the police out post, took up investigation, recorded the statements of injured Ram Manohar (P.W.l) and injured Shiv Baran Singh (PW-2) and sent them for medical examination to district hospital Banda.;