J. C. Gupta, J. - (1.) THIS appeal is directed against the judgment and order dated 16.12.1980 passed by the then IVth Additional Sessions Judge, Varanasi in S.T. No. 98 of 1980. By this order, appellant Pancham has been convicted and sentenced to 1-1/2 years rigorous imprisonment under Section 148, I.P.C. ; to imprisonment for life under Section 302, I.P.C. to two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C.
(2.) APPELLANT Balram has been convicted and sentenced to 1-1/2 years rigorous imprisonment under Section 148, I.P.C. ; to imprisonment for life under Section 302 read with Section 149, I.P.C. two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C. Appellants Vidya Pandey and Jagdish have been convicted and sentenced to one year rigorous imprisonment under Section 147, I.P.C. ; to imprisonment for life under Section 302 read with Section 149, I.P.C. ; two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C. Appellants Badri, Dudh Nath alias Dudha Yadav and Doman have been convicted and sentenced to one year rigorous imprisonment under Section 147, I.P.C. to imprisonment for life under Section 302 read with Section 149, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C.
(3.) AT the outset, it may be mentioned that so far as the appellants Badri, Vidya Pandey, Dudh Nath alias Dudha Yadav and Doman Yadav are concerned, their appeals have abated on account of their having died during the pendency of appeal as reported by the Chief Judicial Magistrate concerned. We are now left with the appeals preferred by appellants Pancham, Jagdish and Balram. The prosecution case in nutshell is that in the intervening night of 1st and 2nd January, 1979. Brijendra P.W. 1 along with his mother Smt. Basna, P.W. 3 his brothers Shankar and Dharmu were sleeping in their mandai. His elder brother Ram Naresh (deceased of the present case) was sleeping in the newly constructed house with his wife Smt. Maina and infant daughter aged about 2 months. Lanterns were burning in the mandai as well as in the new house. His father Sita Ram was away from the village on his duty at Saidpur. It is alleged that at about 1.30 a.m. in the night, all the appellants came to the mandai of the first informant and started showering abuses upon them whereupon the first informant and other inmates sleeping in the mandai woke up and saw that accused Pancham and Balaram armed with pistols and rest of the appellants with lathi, danda and torch were uttering abuses. Brijendra, P.W. 1 and his brother Dharmu anyhow escaped through the tati and went in the village raising alarm. Their mother Smt. Basna requested the appellants not to assault them. Pancham appellant asked her where was Nareshwa (Ram Naresh)? Smt. Basna did not say anything. Thereafter Pancham made his entry into the newly constructed house through its window. He opened the main door, which enabled the accused Vidya Pandey, Jagdish and Balram to make their entry in Ram Naresh's house. In the meanwhile, Ram Naresh and his wife Smt. Maina got up and the former grappled with the accused persons. During the course of scuffle, Pancham accused fired a shot from his pistol in the right thigh of Ram Naresh whereby he fell on the ground. When the aforesaid accused persons were about to leave the house, Smt. Maina caught hold of Jagdish accused whereupon she was assaulted by Jagdish accused with 'danda' and she also sustained injuries on her person. Ram Naresh died an instantaneous death. The assailants were identified in the light of lantern burning inside the house and mandai. In the morning the first informant went to Saidpur to inform his father and then both of them came back to the scene of occurrence. He got F.I.R., Ex. Ka-1 scribed by his father and lodged the same at police station Balua at 10.30 a.m. wherein all the seven appellants were nominated.;