M.C.JAIN,J. - (1.) BOTH these appeals are directed against the judgment and order dated 14-4-1980 passed by Sri B.B. Agarwal, the then 2nd Additional Ses­sions Judge, Varanasi in Sessions Trial No. 19 of 1979. We propose to decide both these appeals by this common judgment, treating Criminal Appeal No. 857 of 1980 as the leading appeal. The appellants in Criminal Appeal No. 857 of 1980 are Shyamji Pandey, Baijnath and Vijai. The appellants in another Criminal Appeal No. 869 of 1980 are Bhaiya Lal, Mithai alias Mithau, Ganesh alias Ganesu, Gopal alias Gopal and Chander. All of them have been convicted under Section 302, IPC read with Section 149, IPC and sen­tenced to life imprisonment. Bhaiya Lai, Mithai alias Mithau, Ganesh alias Ganesu and Gopal alias Gopali have further been convicted under Section 148, IPC and sen­tenced to two year rigorous imprisonment. Baijnath, Shyamji Pandey, Chander and Vijay have further been convicted under Section 147, IPC and sentenced to oneyear rigorous imprisonment each.
(2.) TO begin with broad essentials of the prosecution case may be set forth. The victim and the deceased of the present incident was Bachanu. The incident took place on 22-6-1978 at Teliya Nala Ghat in Mohalla Kayasth Tola, Police Station Adampur, Varanasi at about 12'O clock in the noon. The report was lodged the same day at 1.05 p.m. by Ashok Kumar P.W. 1, son of the deceased. Bachanu deceased used to do the business of sand. The ac­cused Baijnath and others were also engaged in the same business. There was business rivalry between the two parties and even proceedings under Section 107/116, Cr PC, had been initiated be­tween them prior to this incident. Earlier to the present incident, the accused Mithai and others had assaulted Raj Kumars brother of the complainant Ashok Kumar (son of the deceased). These two sides were on logger heads and their relations were strained. On the day of the incident at about 12'O clock in the noon some alterca­tion and exchange of hot words took place between the wife of the deceased and mother of accused Bhaiya Lal over the question of keeping of the sand. The deceased Bachanu intervened and separated them, averting a clash. Immedi­ately, thereafter, all the eight accused-per­sons who were either relations or friends constituting one party formed an unlawful assembly with the common object of com­mitting the murder of Bachanu. Accused Bhaiya Lal was holding a Bhujai; Mithai was armed with a knife; Ganesh was holding Danwa; Gopal was having a Gandasa and Shyam Pandey and Baijnath had laths. All these five accused persons with their weapons and Chander and Vijay with brick bats and stone ballasts assaulted Bachanu, As a result, Bachanu fell down and became unconscious. The incident was witnessed by Prahlad, Balloo, Ramji and others. Ashok Kumar P.W. 1 took his injured father Bachanu on the Thela of Ramji P.W 2 to Kabirchaura hospital where he died at 12.35 p.m. It was thereafter that he went to the Police Station and lodged the first informa­tion report on the basis of which a case was registered. Investigation was taken up by the Ram Adhar Yadav P.W. 7 but the in­quest report of the deceased was prepared in the hospital by Mahabal Singh P.W. 8. The post-mortem over the dead body of the deceased was conducted by Dr. B. V Subramaniyam P.W 9 on 23-6-1978 at 2 p.m. The deceased was aged about 45 years. The following ante-mortem injuries were found on his person: (1) Lacerated wound 1 cm x 0.5 cm, 0.5 cm above tragus of right ear. (2) Abraded contusion 7.5 cm x 2.5 cm on the right cheek. (3) Contusion 7.5 cm x 4 cm at the root of the nose, (4) Multiple abraded contusion 15 cm x 8 cm in front of the upper part of left chest and adjacent shoulder. (5) Lacerated wound 5 cm x 1 cm x 1.5 cm middle of outer aspect of the left arm muscle exposed. (6) Contusion 7 cm x 5 cm over the front of lower l/3rd of left arm (Reddish). (7) Cut 7 cm x 1 cm, bone exposed on the left index finger upward to the dorsum of the left hand, tapering on the back of the hand. (8) Cut outer and back of left leg 15 cm below the knee tapering lower down 12 cm x 4.5 cm x 4 cm, calf muscles cut. (9) Cut 4 cm x 1 cm x .5 cm, 6 cm below the above injury No. 8 tapering below. (10) Cut 7 cm x 2 cmx .75 cm outer aspect of left ankel, bone exposed, tapering at the outer and lower part. (11) Cut 9 cm x 2.5 cm x 2 cm lower end of fibular bone cut at two places. 5 cm apart over the outer aspect of left ankle. Two separate cut ends of beginning and tapering are seen on the front and back aspect of knee respectively. Cut obliquely placed taper at lower level. (12) Cut .2 cm below injury No. 11 on the outer aspect of left foot and dorsum 10 cm x 4 cm x 1 cm, bones exposed with two cuts begin­ning and ends 1 cm apart and tapering at lower and outer aspect. (13) Contusion 6 cm x 2 cm front of neck about above suprasternal notch-reddish. (14) Cut 7 cm x 7.5 cm x 5 cm outer aspect of middle of right leg tapering above. (15) Cut 3 cm below No. 14,2.5 cm x .75 cmx.5 cm. (16) Cut 4.5 cm x .5 cm bones cut over the root of right great 2nd and 3rd toes tapering outwards. (17) Depressed comminuted fracture 10cm x 8 cm right from tempro- parietal area of skull under injury No. 1, membrane underneath torn extradural, subduran, sub-arechnoid haemor­rhage underneath and contusion of brain. (18) In continuation with No. 17 fracture of the middle fossa and front fossa of the base of skull extending from right to left.
(3.) ANTE -mortem injuries No. 1,2,3,4, 5,6,13,17 and 18 had been caused by blunt weapons whereas the rest had been caused by sharp edged weapons, which could in­clude knife, Bhujali or Gandasa. Death had occurred due to shock and haemor­rhage owing to multiple ante-mortem in­juries sustained by the deceased.;