U.S.TRIPATHI, J. - (1.) THIS appeal has been directed against the judgement and order dated 6th March, 1981, passed by the learned Vth Additional Sessions Judge, Allahabad in Sessions Trial No. 132 of 1979, convicting appellant Lal Bahadur under Sections 148, 302, 323 read with 149 and 324 I.P.C. and sentencing him to undergo R.I. for a period of two years under Section 148, imprisonment for life under Section 302 I.P.C., R.I. for a period of six months under Section 323 read with 149 I.P.C. and R.I. for a period of one year under Section 324 I.P.C., convicting appellant Hira Lal under Sections 148, 302/149, 323/149 and 324 I.P.C. and sentencing him to R.I. for a period of two years under Section 148 I.P.C., imprisonment for life under Section 302 read with Section 149 I.P.C., R.I. for a period of six month under Section 323 read with 149 I.P.C. and R.I. for a period of one year under Section 324 I.P.C. and convicting appellants Gaya Prasad, Sarjoo Prasad, Sukh Lal, Jagdeo Prasad and Dashrath under Sections 147, 302 read with 149, 323 and 324 read with 149 I.P.C. and sentencing them to one year R.I. under Section 147 I.P.C., imprisonment for life under Section 302 read with 149 I.P.C., R.I. for a period of one year under Section 324 read with 149 I.P.C. and R.I. for a period of six months under Section 323 I.P.C. All the substantive sentences of the above appellants were ordered to run concurrently.
(2.) THE prosecution story, briefly stated, is as under: - Appellants Gaya Prasad, Sarjoo Prasad and Lal Bahadur are real brothers and sons of Ram Nath. Appellants Dashrath and Hira Lal are the sons of appellant Gaya Prasad. Appellant Sukh Lal is the first cousin brother of appellants Gaya Prasad, Sarjoo Prasad and Lal Bahadur, while appellant Jagdeo Prasad is son of Bhagwandin and Pattidar of other appellants. Gulab Chand deceased was cousin brother of Ram Autar (P.W. 1), Sohan Lal (P.W. 2) and Bachau Lal (P.W. 3) as Lallu Lal, father of Gulab Chand deceased, Raja Ram, father of Ram Autar (P.W. 1) and Sohan Lal (P.W. 2) and Giridhari, father of Bachau Lal (P.W. 3) were real brothers. All the appellants, deceased Gulab Chand, Ram Autar (P.W. 1), Sohan Lal (P.W. 2) and Bachau Lal (P.W. 3) are residents of village Hari Ram Patti alias Katnai, P.S. Mau Aima (now Baharia), district Allahabad. Gulab Chand deceased, Ram Autar (P.W. 1), Sohan Lal (P.W. 2) and Bachau Lal (P.W. 3) had their joint chak out land towards south of house of appellant Gaya Prasad. The appellants were claiming their ownership over said land. On the morning of 28 -11 -1978, Gulab Chand deceased, Ram Autar (P.W. 1), Sohan Lal (P.W. 2) and Bachau Lal (P.W. 3) were constructing a cattle shed over their above chak out land by bricks. At about 11 a.m., appellant Lal Bahadur armed with Pharsa, Hira Lal armed with Katwansa (semi circular sharp edged weapon fitted in a long stick) and appellants Gaya Prasad, Sarjoo Prasad, Dashrath, Sukh Lal and Jagdeo Prasad armed with Lathis came to the place where cattle shed was being constructed. They started abusing the deceased and his cousin brothers named above, exhorted that it would not be tolerated further and they should be killed. On above exhortation, appellant Lal Bahadur inflicted Pharsa blow on the head of Gulab Chand deceased, who sustained injury moved 2 to 4 steps and fell down. Hira Lal inflicted Katawansa blow on Sohan Lal (P.W. 2), Lal Bahadur appellant again inflicted Pharsa blow on Sohan Lal (P.W. 2). The other appellants inflicted Lathi blows on Ram Autar (P.W. 1), Sohan Lal (P.W. 2) and Bachau Lal (P.W. 3). On the alarm raised by witnesses Kishori Lal, Jamuna and several others of the village rushed to the spot and the appellants ran away. Gulab Chand deceased became unconscious on account of injury on his head. He was brought to his house on a charpai. At about 2 p.m. he was taken by Ram Autar (P.W. 1), Sohan Lal (P.W. 2), Bachau Lal (P.W. 3) and others on a charpai for Allahabad. They reached Baharia at about 4.30 p.m. The last bus for Allahabad had passed from Baharia at 4 p.m. Therefore, they missed the bus for Allahabad. They waited for truck or tempo till 7 p.m. and when it was not available, they came to Sikandara at about 9 p.m. No. conveyance was available at Sikandara also, therefore, they stayed in the night at Sikandara. On the next morning they started for Allahabad taking Gulab Chand deceased on a charpai. They reached Tej Bahadur Sapru (Beli) Hospital via Kamla Nagar, Pandila and Phaphamau at 11 a.m. Gulab Chand died out side the hospital. His dead body was left in the Hospital. Bachau Lal (P.W. 3) and Sohan Lal (P.W. 2) were medically examined by Dr. Anurag (P.W. 5) at 12 noon and 12.15 p.m. respectively at Tej Bahadur Sapru Hospital and the Doctor found lacerated wounds, contusions and abrasions on their person and prepared injury report (Ext. Ka -7 and Ka -8). The information of death of Gulab Chand deceased was sent to P.S. Cantonment from the Hospital by means of a memo, which was received at said police station at 2.30 p.m. On receipt of above information, Sub Inspector Mohammad Safer Khan (P.W. 4) reached Tej Bahadur Sapru Hospital and conducted inquest of the dead body of deceased. He prepared inquest report (Ext. Ka -2) and other relevant papers (Ext. Ka -3 to Ext Ka -6). The dead body was sealed and sent for post mortem through Constable Chandrapati Singh Yadav (P.W. 8) and Home Guard Shiv Charan for post mortem.
(3.) RAM Autar (P.W. 1) then prepared report of the occurrence (Ext. Ka -1) and lodged the same at P.S. Colonelganj at 7 p.m. Chik, F.I.R. (Ext. Ka -13) was prepared by Head Constable Badri Pratap Narain Singh (P.W. 9), who made an endorsement of the same at G.D. report (Ext. Ka -14) and registered a case against the appellants under Sections 147, 148, 329, 323, 324 and 304 I.P.C.;