- (1.) M. C. Jain, J. This appeal came to be filed by 7 appellants, namely, (1) Ajai Pal (2) Ram Dutt (3) Bal Ram (4) Raj Bahadur (5) Jagdev (6) Laxmi and (7) Rajwa. Out of them, Ajai Pal and Ram Dutt are real brothers. The impugned judgment is dated 23-2-1981 rendered by Sri Bhagwan Din, the then IVth Additional Sessions Judge, Hamirpur in Sessions Trial No. 113 of 1980. All of them have been convicted under Section 147 IPC and sentenced to one year's rigorous imprisonment. Ajai Pal and Balram have also been convicted under Section 148 IPC and each sentenced to two years' rigorous imprisonment. All the appellants have further been convicted under Section 307 IPC read with Section 149 IPC and 302 IPC read with Section 149 IPC sentence passed against each of them under Section 307 read with Section 149 IPC is four years' rigorous imprisonment and life imprisonment under Section 302 read with Section 149 IPC. The sentences have been ordered to run concurrently.
(2.) APPELLANTS Jagdev, Balram and Laxmi died during the pendency of the appeal and by order dated 20- 8-2002 the appeal has abated so far as they are concerned. The incident took place on 5-3-1979 at about 10 p. m. at the Khalihan of PW 1 Rameshwar (injured) in village Chandpurwa, Police Station Sumerpur, District Hamirpur. The FIR was lodged by him in the night itself viz. , at 2. 30 a. m. on 6-3-1979. The distance of Police Station from the place of occurrence was three miles. The appellant Ajai Pal was armed with countrymade pistol, Balram had a Barchhi (sharp edge weapon) and the rest had lathis. The deceased was one Dibiya. Rameshwar PW 1 and Gaya Prasad are the injured of the felony on the prosecution side. One Shyam Lal DW 1 (now dead) is said to have sustained injuries on the side of accused also. The case coming to fore from the FIR and the evidence adduced in the Court may shortly be stated. Both the parties reside in village Chandpurwa, Police Station Sumerpur, District Hamirpur. A day before the incident at about the time of sundown the accused Ajai Pal, Ram Dutt, Rajwa, Balram and Laxmi were digging earth from the field of Rameshwar PW 1, joining the same with the Chak- road. They wanted to fill in the Nala with earth so as to facilitate the passing of their bullock-cart. Rameshwar PW 1 and his brother Gaya Prasad happened to reach the spot and asked Ajai Pal and others not to do so. Heat was generated and exhange of hot words took place between the two sides. Ajai Pal and others on his side left the scene after hurling abuses and offering threats that the score would be settled.
(3.) AT the fateful time of the present incident, Rameshwar PW 1 and his brother Gaya Prasad were lying in their Khalihan. It was a moonlit night. The appellants with their weapons as detailed above, came over there and giving reference of earlier day's incident, challenged Rameshwar PW 1 and his brother that they would not be allowed to get away. Rameshwar and Gaya Prasad raised shouts. The accused appellants surrounded them and started assaulting them. Dibiya and his brother Ram Kishan came over there with lathis on hearing the shouts of Rameshwar and his brother and they attempted to shield Rameshwar and Gaya Prasad with their lathis. One Vishal Yadav is also said to have appeared there with lathi. Ajai Pal opened fire which hit Dibiya who fell down and died a little while later. The FIR also stated that some on the accused side had sustained injuries. Consequent upon lodging of the FIR, a case was registered and investigation followed. Rameshwar PW 1 was examined in District Hospital Hamirpur on 6-3-1979 at 10. 30 a. m. by Dr. K. S. Srivastava PW 2. The following injuries were found on his person: (1) A lacerated wound 8 cm x 2 cm x bone deep on the scalp 8 cm above the right ear and oblique in direction. (2) Contusion 6 cm x 3 cm on the right shoulder, just above the spine of right scapula, surrounded by traumatic swelling in an area of 10 cm x 8 cm. (3) Traumatic swelling 7 cm x 5 cm on the Lat. Side of right hand (dorsal aspect ). (4) Contusion 10 cm x 4 cm on the middle of lateral aspect of left leg surrounded by traumatic swelling 10 cm x 6 cm. (5) Complaint of pain in the middle of anterior aspect of left thigh. All the injuries were simple and had been caused by hard blunt object. The duration was about 1/2 day.;