- (1.) VISHNU Sahai, J. This appeal has been preferred by Gaya Prasad, Chhotey Lal, Babu Ram and Ram Autar against the judgment and order dated 31-3-1980, passed by IV Addl. Sessions Judge, Sitapur in Sessions Trial No. 132 of 1978, whereby they have been convicted and sentenced in the manner stated herein after: Chhotey Lal: - (i) Under Section 148 IPC to one year's R. I. ; (ii) Under Section 324 IPC to one year's R. I. ; (iii) Under Section 323/149 IPC to six months R. I. ; and (iv) Under Section 302/149 IPC to imprisonment for life. Gaya Prasad, Babu Ram and Ram Autar: - (i) Under Section 147 IPC to six months R. I. ; (ii) Under Section 324/149 IPC to one year's R. I. ; (iii) Under Section 323 IPC to six months R. I. ; and (iv) Under Section 302/149 IPC to imprisonment for life. Sentences of the appellants were directed to run concurrently. It is pertinent to mention that during the pendency of the appeal, appellants Gaya Prasad, Chhotey Lal and Ram Autar died and a Division Bench of this Court comprising of Dev Kant Trivedi and Kamal Kishore, JJ. vide order dated 23-3-1999 ordered their appeal to abate.
(2.) SHORTLY stated the prosecution case runs as under: - Informant Puttu Lal P. W. 1 is the son of Parmeshwar Deen and the real nephew of Gaya Prasad, Chhotey Lal and one Ram Prasad, who died prior to the commencement of the trial. Appellant Ram Autar is the son of Ram Prasad. Appellant Babu Ram is the real brother of the informant. Since Chhotey Lal was issueless, from 15 days prior to the incident, he had started keeping Babu Ram as his son and the latter began living with him. The house of Chhotey Lal was in front of the house of the informant. Other appellants and deceased-accused Ram Prasad used to live in Chhotey Lal's house. Deceased- accused Ram Prasad about 20 years before the incident, had kept a woman with him, who had two issues from her husband; one being appellant Ram Autar and the other one Shyam Lal. About three months prior to the incident, deceased- accused Ram Prasad had performed Janev ceremony (thread ceremony) of Ram Autar and Shyam Lal. Since informant and his family member did not attend it, Ram Prasad started nursing ill-will against them. A day prior to the incident, informant told Chhotey Lal that it was wrong on his to have kept Babu Ram. On this an exchange of abuses took place between the informant and Chhotey Lal. It appears that the same day Chhotey Lal asked Babu Ram to demand a share in the land and the house. Babu Ram asked his and informant's father Prameshwar Deen for the same. The latter told him that he would not get it. On this Chhotey Lal told Parmeshwar Deen that Babu Ram was also his son. Thereupon Parmeshwar Deen replied that he had to settle the marriage of other children and was not in a position to give share to Babu Ram. 2-A. On account of the aforesaid enmity, on 23-6-1973 at about 6 a. m. when the informant Puttu Lal was collecting cow dung in front of his house, deceased- accused Ram Prasad and appellant Chhotey Lal armed with ballam, appellants Gaya Prasad, Babu Ram and Ram Autar armed with lathis came and started assaulting him with their weapons. He raised cries, hearing which his father Parmeshwar Deen, his mother Ram Piyari, co- villagers Ram Kumar, Sunder Lal, Bechey Lal, Barati and Chaudhari came. Deceased- accused Ram Prasad and the appellants thereupon started assaulting Parmeshwar Deen and when Ram Piyari ran to rescue him they also assaulted her. As a consequence of the assault Prameshwar Deen was rendered unconscious. Then deceased- accused Ram Prasad and the appellants ran away. Thereafter the informant arranged for a bullock cart and the same, along with Parmeshwar Deen and Ram Piyari proceeded to the police station Sandhana, District Sitapur, which he reached at about 10 a. m. and where he lodged his FIR. The evidence of S. I. Dwarika Prasad P. W. 9 shows thus: - On 23-6-1973 at about 10. 15 a. m. while he was posted as Head Moharir at police station Sandhana, the informant Puttu Lal along with the other victims came to the police station and lodged his FIR Ext. Ka-1, on the basis of which he registered a case under Section 307 IPC vide G. D. Entry No. 14; which offence was subsequently converted to one under Section 302 IPC, on receipt of information of the death of Parmeshwar Deen. The evidence of S. I. ; Bhagmal Singh P. W. 10 shows: - FIR was lodged in his presence and thereafter he took over investigation. He immediately performed the inquest (it appears that immediately after he had commenced the investigation, Prameshwar Deen died) and sent the corpse for autopsy. He thereafter recorded the statements of Puttu Lal, Ram Piyari and other witnesses. He then left for the place of incident, where he prepared the site plan Ext. Ka-12. He collected therefrom plain and blood stained earth under separate recovery memos. He did some other investigation, but since in our view, a reference to it is not necessary for the disposal of the appeal, we are not adverting to it. On 4-7-1973 he was transferred.
(3.) THE evidence of S. I. Shanti Swaroop P. W. 7 shows that he took over investigation from S. I. Bhagmal Singh and after completing the same on 29-5-1974 submitted charge-sheet against the appellants and the deceased-accused Ram Prasad. Going backwards, the injuries of informant Puttu Lal and Ram Piyari were medically examined on 23- 6-1973 at 9 p. m. and 9. 15 p. m. respectively by Dr. R. K. Seth P. W. 8. On the person of Puttu Lal Dr. Seth found one lacerated wound, one punctured wound, three contusions and one swelling and on that of Ram Piyari one lacerated wound, two contusions and complaint of pain on the right hand. In the opinion of Dr. Seth, the punctured wound suffered by Puttu Lal was attributable to a object like Ballam and remaining injuries of both the victims to a blunt object like lathi. Dr. Seth also opined that the injuries of the victims could have been caused on 23-6-1973 at 6 a. m.;