S.S. Dhavan, J. - (1.) THE six Appellants, Gulab, Ambika Chandrika, Amarnath, Tilakdhari and Krishna were convicted by the learned Sessions Judge, Mirzapur, as a result of an occurrence which took place on 9 -9 -1959 in which Ajmer deceased lost his life. Ambika was convicted of murder and sentenced to death. The other five were also held guilty of murder with the aid of Section 149 of the IPC but sentenced to imprisonment for life. These five accused were also convicted of rioting and sentenced to two years rigorous imprisonment each. Ambika was also convicted under Section 148 IPC of the offence of rioting armed with a deadly weapon and awarded rigorous imprisonment for three years. All of them have appealed against their conviction and sentences.
(2.) THE prosecution case against the Appellants very briefly was as follows: There appears to have been a dispute over a plot of land between the accused Gulab and the deceased Ajmer. Both were residents of the same village, Jasa Bhagaura. According to the prosecution the land was in the cultivatory possession of Ajmer who had been a sub -tenant for nearly fifteen years. Gulab wanted to oust him and recover possession. Ajmer had sown Bajra, Urd and Arhar in this field, but the crop was a comparative failure and he therefore decided to re -plough the land. On 9 -9 -1959, he was engaged in uprooting the old crop and with him were his wife Smt. Bashiran and a ploughman Asghar. Ajmer and Asghar were doing the ploughing while Bashiran was collecting the uprooted crop. They were all unarmed. At this moment the six Appellants arrived. They were all armed - -Ambika with a spear and the remaining five with lathis. Ghulab ordered Ajmer to stop ploughing, but the latter refused and said that lie had been in cultivatory possession for the last fifteen years and had a right to plough the land. Thereupon Ghulab fired two crackers which went off with a bang. Ajmer stepped back towards the south. Ghulab, however, incited his associates to assault Ajmer and shouted 'MARO SALE KO'. Thereupon Ambika plunged his spear into the left thigh of Ajmer and it went right through. He kept it pressing against the wound, holding his victim down like a pinned beetle. Ghulab and the other accused gave him lathi blows. His wife and servant were not assaulted. All the three shouted for help which brought on the scene a number of persons. On their intervention the assailants ran away towards Sikra village which is nearby. After they had left, Ajmer, who had fallen down, got up, but after a few steps he collapsed and died. Leaving her husband's dead body in a Qabristan nearby, Smt. Bashiran went to the thana to lodge a report, accompanied by the Chaukidar. There was no delay in making it. The Second Officer -in -charge of the police station immediately proceeded to the spot and found the dead body of Ajmer in the Qabristan. He discovered blood stains and took samples of the stained earth. He also recovered the remains of two crackers. Meanwhile all the accused had made them selves scarce and were treated as absconders. Their property was attached after the usual proclamations. Subsequently some of them surrendered to the court while the others were arrested.
(3.) ALL the accused were charged with murder and other offences. Ghulab admitted that he was at the scene of occurrence and that a fight did take place, but he gave a different version of it. He alleged that the land in dispute did not belong to Ajmer and was never in his possession, nor had he sown a crop over it. The land was his and he had sown the crop which was standing on it on 9 -9 -1959. On that date he went to that held with one Sarwaha and two ploughmen. Ghulab admitted that he and the ploughmen were armed with a Danda and the Sarwaha with a spear (Ballam), but denied that any of the other five accused were there. His party of four found Ajmer with 10 or 12 others engaged in uprooting the crop which had previously been sown by him. He protested, whereupon Ajmer and his companions shouted 'MARO SALE KO'. One of them gave him a lathi blow which he parried with his own lathi and as a result of the impact his lathi dropped from hand and he took to his heels. His companions, however, remained behind and he did not know what happened after he had left.;