S.N.H. Zaidi, J. - (1.) THIS criminal appeal has been referred to me as a third Judge as their Lordships (Hon'ble Justice Khem Karan and Justice P.K. Chatterjee) of the Division Bench differed in their opinion vide their judgments delivered separately on 28.7.2004.
(2.) THE appeal has been directed against the judgment and order dated 27.12.1980 passed in Sessions Trial No. 286 of 1997 by Shri R.D. Shukla, 4th Additional Sessions Judge, Barabanki, convicting and sentencing accused Appellants (a) Raj Kumar to life imprisonment under Section 302 I.P.C. for committing the murder of Badri, to two years' R.I. under Section 324 I.P.C. for voluntarily causing simple hurt to Balraj by firearms and to 18 months' R.I. under Sections 148 I.P.C. for committing rioting with firearm, (b) Ram Pal Singh to life imprisonment under Section 302 I.P.C. for committing the murder of Baladin and to 18 months' R.I. under Section 148 I.P.C. for committing rioting with fire -arm, (c) Faqirey to four years' R.I. under Section 307 I.P.C. for attempting to commit murder of Bhulai and to 18 months' R.I. under Section 148 I.P.C. for committing rioting with country -made pistol, and (d) Gaya Prasad, Mathura Prasad, Shesh Narain, Rakesh, Vinod, Tej Narain, Babu Singh, Jagdamba and Kamlesh to six months' R.I. under Section 147 I.P.C. for committing rioting and to one year's R.I. under Section 323 read with Section 149 I.P.C. for voluntarily causing simple hurt to Bhulai, Putti Lal and Jagjivan, with the direction that the sentences shall run concurrently. Appellants Babu Singh, Jagdamba Singh, Mathura, Gaya Prasad and Faqirey died during the pendency of the appeal. Since none of their legal representatives has come forward for substitution, hence the appeal of the above named Appellants abates.
(3.) THE case of the prosecution, in brief, is that there was a caste rivalry in village Dhakuwa, Hamlet of Kamoli, Police Station -Tikait Nagar, District -Barabanki between the Appellants, who belong to Thakur and Brahman communities and complainant Bhulai PW -1, who belongs to the Scheduled Caste community of Chamar, on the question of lifting of dead animals as the complainant had refused to remove the dead cattle of the Appellants and he was threatened with dire consequences by the Appellants. There is no dispute that cases under Sections 107/116 Code of Criminal Procedure as well as Sections 323/427 I.P.C. and Section 24 Cattle Trespass Act were filed prior to the occurrence in question. About a month prior to the occurrence, the complainant and others were acquitted in the case under the Cattle Trespass Act, which resulted in deeper enmity between them. Enraged by their acquittal, Appellants Raj Kumar and Ram Pal Singh being armed with guns, Faqirey being armed with a country made pistol (Katta) and the rest Appellants being armed with lathis, on 24.6.1977 at about 4 pm, surrounded Bhulai and his son Bardi when Bhulai was collecting the grass and Badri was ploughing the field, which was taken on Batai from Devi Badhai, and exhorting to set them right, caught hold of them, abused and dragged them upto the field of Ram Chandra Murao and started beating them. On the alarm of Bhulai and Badri, several persons, namely, Baladin, Putti Lal PW -2 and Jagjivan PW -3, who were working in the nearby fields, rushed towards them but in the meanwhile, Raj Kumar opened fire at Badri, who fell down after sustaining injuries and when his father Bhulai tried to come to his rescue, Faqirey fired upon him as a result thereof he also received injuries and Ram Pal Singh fired at Baladin, who also fell down after sustaining the injuries and the Appellants, who were armed with lathis, assaulted Baladin, Bhulai, Jagjivan and Putti Lal with lathis. On hearing the sound of firearms and the noise of the occurrence, several persons, including Ram Bharose PW - 4 and Balraj, rushed from the village to the place of occurrence, whereupon Raj Kumar again fired at Balraj who received fire -arm injuries. Ram Bharosey PW -4 and several villagers, who had assembled at the spot wielded lathis and pelted Dhelas (small pieces of hard earth) at the assailants to defend the victims. On realizing the mounting pressure of the villagers, the Appellants went away towards the west of the place of occurrence.;