Vinod Prasad and Virendra Vikram Singh, JJ. - (1.) HALF a dozen appellants, namely, Udai Bhan (A -1), Ram Nain (A -2), Chandra Bhan (A -3), Shree @ Shri Ram (A -4), Surendra (A -5) and Killu (A -6) are aggrieved by the order of their conviction and sentence dated 28th July, 1982, recorded by Sessions Judge, Basti in S.T. No. 62 of 1981, State v. Udai Bhan and others, relating to police station Dudhara, District Basti. Learned trial Judge, after marshaling of facts and circumstances, and the evidences tendered during the Sessions Trial, vetting and critically appreciating them, concluded that two of the appellants Surendra (A -5) and Killu (A -6) were guilty under Sections 147, 302 /149, I.P.C. and rest of the appellants Udai Bhan (A -1), Ram Nain (A -2). Chandra Bhan (A -3) and Shree @ Sri Ram (A -4) were guilty under Sections 148 and 302 /149. I.P.C. and therefore, convicted all them for those respective offences. Under Section 147, I.P.C., (A -5) and (A -6) were sentenced to two years R.I., under Section 148, I.P.C. rest of the appellants (A -1), (A -2), (A -3), (A -4), were sentenced to three years R.I. Co -jointly all the appellants were sentenced to imprisonment for life under Section 302 /149. I.P.C. All the sentences of all the appellants was directed to run concurrently. It is this judgment and order, which is now under challenge before us in the Instant appeal. Pending consideration and final outcome of this appeal, three of the appellants Udai Bhan (A -1), Shree @ Shri Ram (A -4) and Killu (A -6) expired and, therefore, our predecessor Bench, abated their appeals on 31.8.2007. This has left us to consider the appeal of residue of surviving appellants. Ram Nain (A -2), Chandra Bhan (A -3) and Surendra (A -5).
(2.) ACCORDING to prosecution case, informant and his son deceased Subhan Allah @ Subhan were residents of village Banjaria, under police circle Bakhira, whereas all the appellants were residents of village Parsa Jhakharia under police station Dudhara which was at a distance of 3 -4 furlongs from informant's village. All the accused belonged to Kewat caste. One day prior to the incident in question there was verbal abusive triadic altercation between Subhan and (A -4) in the grove of Jhakharia Bazar on the purchase of Tody. It is further alleged that on 3.5.1980 at 10.30 p.m. in Natahwa locality, accused persons armed with ballam, pharsa and lathi caused death of Subhan son of informant Abdul Sattar Khan, P.W. 1, when the deceased, accompanied with his nephew Mohammad Salim, P.W. 2, had gone to enjoy a dance programme, organised at the house of Sumiran Kewat in Tola Natahwa locality. They had started from their village at 9 p.m. and had reached the place of dance programme at 10 p.m., when the arrangement for the programme was still being made. P.W. 2 and deceased, therefore, sat on the north east corner of Shamiana behind other gathered crowd, who had collected there to watch the programme. The incident had occurred prior to the beginning of the programme when all the appellants alongwith one Dilip came to the spot and surrounded the deceased Subhan. (A -1) and (A -2) were armed with ballam (spear), (A -3) and (A -4) were armed with spades, and (A -5) and (A -6) were armed with lathis. Dead assailant Dilip was also armed with a lathi. At the instigation of Dilip all the appellants had started belaboring the deceased Subhan, who efforts to save his life by rushing beneath a standing Dunlop. (A -2) and (A -5) pulled him out by his leg and the accused started beating him with lathis and dandas. Meanwhile (A -1) gave a fatal spear blow to Subhan, who died instantaneously. This murder was witnessed also by Abdul Wahid, Mohd. Nabi, and Mustafa. Committing murder, accused escaped towards their houses. In the lights emanating from five or six gas lamps kept under the shamiana that the assailants were identified by the witnesses. The underline motive was the above to referred Tody dispute which had occurred on 2.5.1980. F.I.R. Exhibit Ka -1, about the murder was dictated by the informant father Abdul Sattar Khan P.W. 1 to scribe Shakir Ali and after it was penned down then P.W. 1 measured a distance of six miles to the police station Dudhara, where he lodged his F.I.R. on 4.5.1980 at 2 a.m., after just two and half hours. C/M Hari Prakash registered the crime by inking chik F.I.R. Exhibit Ka -4 and relevant G.D. entry, Ext. Ka -5, which both documents have been proved by the first Investigating Officer, Police Station In -charge, S.I. Mahipat Singh, P.W. 6.
(3.) COMMENCING Investigation Investigating Officer copied chik F.I.R. and G.D. entry and then proceed for the murder spot on cycle alongwith informant and A.S.I. Shiv Narain Pandey. Since night had fallen, therefore. Investigating Officer conducted Inquest on the dead body of the deceased next day morning and prepared Inquest memo Ext. Ka -6, and other relevant papers Exts. Ka -7 to Ka -10. Body was sealed and dispatched for post -mortem examination through constable Dayaram and village Chaukidar. Spot inspection was conducted and site plan Ext. Ka -11 was sketched. Blood stained and plain earth, material Exhibits 1 and 2, were collected through recovery memo Ext. Ka -12. Blood soaked attire (gamacha) was also recovered vide recovery memo Ext. Ka -13. Eye -witnesses and witnesses of inquest were interrogated and their 161, Cr.P.C. statements were recorded. Since accused were at large a report under Section 82 -83 was forwarded. Thereafter, investigation was taken over by Jagdish Prasad Pathak, S.O. Police Station Dudhara, P.W. 4, from P.W. 6, who recorded accused statements and concluding the investigation charge -sheeted them on 14.6.80 vide Ext. Ka -2.;