- (1.) THIS is an appeal filed against the judgment and order dated 15.9.1981 passed by the Additional District & Sessions Judge, Bareilly in Sessions Trial No. 16 of 1981 convicting all the five Appellants under Section 302 read with Section 149 IPC and sentencing them to undergo R.I. for life; as well as under Section 307 read with Section 149 IPC and sentencing them to undergo R.I. for seven (7) years. The Appellants Kandhai Lal, Nanhey Lal, Kallu and Pooran have been further convicted under Section 147 IPC and sentenced to one (1) year R.I. whereas the Appellant Munna has been convicted under Section 148 I.P.C. and sentenced to one (1) year R.I. All the Appellants have been found not guilty under Section 379 IPC and thus acquitted of the said charge.
(2.) DURING the pendency of this appeal, the Appellant No. 4 Kallu son of Hori had expired, which fact was confirmed vide report dated 5.11.2009 submitted by the Chief Judicial Magistrate, Bareilly. As such, by order dated 30.11.2009 it was directed that the appeal on behalf of the Appellant No. 4 Kallu stands abated. Thus this appeal survives only on behalf of Appellant Nos. 1, 2, 3 and 5, namely, Kandhai Lal, Nanhey Lal, Munna and Pooran. The brief facts as per the prosecution story are that prior to the date of occurrence, the water pump which was bored in front of the Baithaka of the complainant (Sri Ram) was stolen. The next day Mansha Ram (uncle of the complainant), who was searching for the water pump, came to know that the same was being bored in the house of Pyare Lal, who is the father -in -law of Kandhai Lal (Appellant No. 1). On receiving such information Mansha Ram, uncle of the complainant, went to the house of Pyare lal and saw the stolen water pump which was being bored and on being asked, Pyare Lal told Mansha Ram that he would return the said water pump, on which assurance Mansha Ram came back to his house and told all details of the incident to the complainant Sri Ram and his father Ram Swaroop (deceased). Ram Swaroop thereafter called Nanhey Lal and Kandhai Lal as well as their father Narain Lal, who went to the house of Ram Swaroop, who scolded and abused the three persons because of which they were annoyed and threatened Ram Swaroop of dire consequences. On the date of the occurrence i.e. in the night of 18/19.2.1979 the complainant Sri Ram is said to be sleeping in his "Gonrra" along with his father Ram Swaroop and uncle Mansha Ram where a lantern was burning. It is alleged that the accused Kandhai Lal, Naney Lal and Munna came into the room of that "Gonrra" along with two more persons who were not known to the complainant but the complainant had seen them in the light of the lantern. It is alleged that accused Kandhai Lal and Naney Lal had lathis in their hands and accused Munna had a "Bhala" (spear) in his hand. The two others had "Tamancha" (country made pistol) with them. It is also alleged that as soon as accused Nanhey Lal, Kandhai Lal and Munna entered into the "Gonrra", they said to Ram Swaroop that he should get up as they had come to kill him and immediately started beating Ram Swaroop. Mansha Ram ran away from the house immediately and started making hue and cry outside the house. The complainant Sri Ram and his father Ram Swaroop were shouting from inside the house as they were being beaten with lathi and Ram Swaroop was also beaten with "Bhala". Hearing the shouts of the complainant and his father Ram Swaroop and uncle Mansha Ram, the witnesses Jamuna Prasad, Gaidan, Kishan Sahai reached the spot who had lathis and torches in their hands. They challenged the accused who, in turn, ran away from the place of occurrence. The complainant Sri Ram, along with his uncle Mansha Ram as well as Jhabbu Chaukidar and Jamuna Prasad took Ram Swaroop in a bullock cart to the police station but on way Ram Swaroop succumbed to his injuries. Thereafter they reached the police station with the dead body of Ram Swaroop and lodged the F.I.R.s at 4.05 p.m. on 19.2.1979. It is stated in the F.I.R. that since it was raining and the road was not good, there was delay in lodging the F.I.R. It was also stated that all the accused persons (Appellants) had been identified in the light of the lantern. The complainant Sri Ram was medically examined at the District Hospital, Bareilly and the post mortem of the deceased Ram Swaroop was conducted on 20.2.1979 at 3.00 p.m.
(3.) THE accused persons were charged by the trial Judge under Sections 302/149 and 379 IPC. The accused Kandhai Lal, Nanhey Lal, Kallu and Pooran were charged under Section 147 IPC whereas accused Munna was charged under Section 148 IPC. They abjured the charges and claimed trial.;