U. K. Varma ,J. - (1.) THESE are three Criminal Appeals nos. 3514 of 1978, 394 of 1979 and 461 of 1979 arising out of the Judgment and order of Sri Rajendra Narain Sinha III Additional Sessions Judge, Fatehpur in the Sessions Trial no. 295 of 1977. He had convicted Vishwanath, Ram Swarup, Badla and Mohan Lal under sections 302 read with 149 and 148, IPC and sentenced them to imprisonment for life on the first count and to three years rigorous imprisonment on the second, with both the sentences running concurrently. He although acquitting Ram Dhani, Bachchi Lal, Rajua, Ram Narain, Kripa and Ram Sajiwan under section 302 read with section 149, IPC had also convicted them under section 148, IPC and sentenced them to three years rigorous imprisonment.
(2.) THE uncontroverted facts are that in the night between December 9 and 10, 1976, the three brothers Bhagauna, Ram Adhin and Devi Dayal sons of Dwarika had been shot dead in the abadi of the village Jalwapur and Kallu son of Dhiraj resident of village Ghana was assassinated soon after to the west of the above abadi by the side of the village path in the field of Bhikha and others. THE thatched roof and the Khaprail structure of the appellant Ram Dhani over land in respect of which his deceased brothers were not prepared to give up their rights without consideration in his favour had also been burnt by the miscreants in the course of the above murders. The prosecution case is that the appellant Ram Dhani wanted to grab an ancestral house belonging to him and his brothers situated to the north of the house of Rameshwar Pandit. The son of -Ram Adnin deceased named Gopal resisted the greedy design of Ram Dhani. The police apprehending breach of peace, initiated cases both against Ram Dhani and Gopal under sections 107/116 of the Code of Criminal Procedure. The Pradhan of the village Rithwa named Ziauddin intervened and brought about a settlement where under Ram Dhani was to pay Rs. 500/- to his three deceased brothers to euclusively own the disputed ancestral house. Ram Dhani inspite of the compromise in the Bindki court did not pay the agreed amount of Rs. 500/- and resumed construction over the ancestral land which he had earlier begun before the above case. Angered by the conduct of his brothers in respect of this property in the night between December 9 and 10, 1976 at 10 p.m. accompanied with his three sons Vishwanath, Ram Swamp and Badla armed with guns and another son Bachchi Lal carrying a 'looka' and he himself a bundle of burning 'Sanai' and his party men Mohan a pistol; Ram Narain, Kripa and Ram Sajiwan spears and Rajua too a 'looka' arrived at the house of Bhagauna who was lying on a cot. Near by him were the informant Jagarnath and his brother Gokul and the witnesses Ghasita and Zalim conversing in between themselves. The wives of Jagarnath and Gokul named Mukhratia and Rania and a grand son of Bhagauna named Shyam Lal were listening to the gossip of their elders. Ram Dhani exhorted these accompanying him to kill Bhagauna. His sons Vishwanath, Ram Swarup and Badla there upon shot him dead. Ram Dhani thereafter went to the disputed ancestral house and set it on fire conveying that be had done so to rope in the sons of Bhagauna in a criminal case. Ram Dhani and his men next proceeded to the house of Ram Adhin and there they instigated each other to kill him. The appellants Vishwanath, Ram Swarup and Badla, as in the case of Bhugauna, also shot him dead. It was then that Devi Dayal arrived. He told the assailants to kill him too when they had already assassinated his two brothers. At this Kara Swarup, Vishwanath and Badla and also Mohan fired at him. Having killed Bhagauna, Ramadhin and Devi Dayal, the assailants proceeded south west towards Rithwa The truck of Sheo Singh of Bhikham loaded with coarse sand and carrying thirty to thirty five persons about the same time happened to reach there. Those on the truck challenged the assailants. They thereupon opened fire felling Kalua The assailants managed to make good their escape as no one from the village came to the rescue of the victims out of fear. The appellants had been identified in the light of the burning materials in the hands of the three appellants, the 'dhibri' in the house of Bhagauna, the light emanating from the thatched roof set on fire by Ram Dhani, the lantern in the house of Bhagauna and also the moon. The prosecution had examined Jagarnath PW 2, Ghasita PW 3, Smt. Samrati PW 4 and Gopal PW 5 as the witnesses of the occurrence. In the first information report Ex. Ka 5 both Jagarnath and Ghasita were shown to have been present at the house of Bhagauna when the assailants arrived fully armed and carrying burning 'looka' and 'silha' perhaps for .not making mistake in identifying those whom they wanted to kill. Both these witnesses stated to have seen the incident from start to finish as alleged in the FIR Smt. Samrati PW 4 is the daughter in Jaw of Devi Dayal deceased. She narrated to have come out on hearing the sound of firing at the house of Bhagauna and witnessed the burning of the disputed ancestral house by Ram Dhani appellant and the shooting of Ramadhin and after him of Devi Dayal in the circumstances mentioned in the FIR and by the person named therein. Gopal PW 5 is the son of Ramadhin deceased. He deposed as to how Vishwanath, Ram Swarup and Badla one after the other had fired at his father killing him and how Devi Dayal had been shot dead by them and Mohan appellant when he pointed that there he was awaiting to be done to death when his two brothers had already been assassinated. He also deposed that he, Jagarnath and Ghasita had gone behind the assailants and noticed the shooting down of Kalua who was one of the twenty five to thirty persons who had challenged the appellants from the truck. So far as motive of the crime is concerned, the prosecution witness Jagarnath PW 1 stated about it in his examination-in-chief. The other witnesses deposed about the same when questioned in regard to it in their cross-examination.
(3.) CHHOTEY Lal PW 6 proved the check report Ex. Kha 5 and the G. D. entry Ex. Ka 8 by which this case was registered against the appellants. Prahlad Singh PW 7 who is the Investigating Officer proved the inquest reports in respect of the deceased, the recovery memos regarding the dhibri, lantern, the articles on the bodies of the four deceased the blood stained and plain earth, the ashes of the burnt thatched roof of the house of the appellant Ram Dhani, the site plan of the places of the incidents and the documents which he had prepared for facilitating the post-mortem examinations of the deceased by the Medical Officer.;