Nanavati, J. - (1.) Both these appeals arise out of the judgment and order passed by the Patna High Court in Criminal Appeal No. 43 of 1982. Lakhiya Devi mother of deceased Chander and the informant in this case, has filed Criminal Appeal No. 109 of 1989 as the High Court partly allowed the appeal filed by the accused and set aside the conviction of the accused other than accused Budhai under Section 326 read with Section 149, I.P.C. and that of Budhai under Section 325 read with 149, I.P.C. and also because the High Court discharged the notice issued by it whereby the accused were called upon to answer why their conviction should not be altered to one under Section 302 read with Section 149, I.P.C. and why the sentence imposed upon them should not be enhanced. Criminal Appeal No. 407 of 1989 has been filed by the accused as the conviction by the trial Court under Section 201, I.P.C. and the sentence imposed for that offence have been confirmed.
(2.) The prosecution case was that during the night between 6th and 7th April, 1976 Chander Yadav was at his 'Khalihan' situated at a little distance from the village. At about 6 O'clock in the morning he came running to his house and after getting the main entrance door opened, he went into a small room where foodgrains used to be stored and closed its door from inside. By that time, about 20 persons including the 16 accused came there running. The assailants were either armed with sticks and (sic) sharp weapons. As they saw Chander taking shelter in that small room and closing the door some of them climbed over the roof to make a hole therein and to get inside that room. Others tried to break open the door of that room. The assailants who had gone over the roof were able to make a hole therein and jump inside that room. By that time the remaining assailants were also able to break open the door. All of them then assaulted Chander and committed his murder. Then they started carrying away the dead body by dragging it. Lakhiya Devi tried to prevent them from carrying away the dead body by catching hold of it but accused Saudagar pushed her away by giving a kick on her chest. When her daughter-in-law Shanti Devi tried to prevent them from taking away the dead body she was also pushed aside and threatened. The assailants then carried the dead body of Chander with them by scaling over the western boundary wall of his house and were proceeding towards the west of the village. At that time two police constables, Shanker Dayal and Kapil Kumar on being informed about what had happened ran after the assailants. On seeing the two policemen the assailants started running away but the policemen were able to apprehend four of them. They were Doman, Brahmadeo, Puna (since deceased) and Jai Nath. After some time a Sub-Inspector of Police of Akbarpur Police Station happened to arrive in the village and on hearing the commotion went near the house of Chander and came to know about the incident. He recorded Fard beyan of Lakhiya Devi in the village at about 9.30 a.m. and on the basis thereof an offence was registered against 19 persons. During the pendency of the trial two accused Jagdish and Puna died and, therefore, the trial proceeded against the remaining 17 accused. It was alleged against all of them that they had committed the murder of Chander in prosecution of their common object and because of the previous enmity.
(3.) In order to prove its case the prosecution had mainly relied upon the evidence of 6 eye-witnesses and the two police constables who had apprehended the above-named 4 accused. The accused had also examined 7 eye-witnesses in defence and that was mainly for the purpose of establishing the plea of alibi.;