J.N.DUBEY, J. - (1.) APPELLANTS Ram Kishan, Nek Ram, Chitter alias Chet Ram, Sia Ram and Subedar have preferred the instant appeal against the judgment and order dated 20 -2 -1979 passed by Sri M.P.S. Tomar, III Additional Sessions Judge, Etah in Sessions Trial No. 432 of 1978 by which appellants Nek Ram and Chittar alias Chet Ram were convicted and sentenced to undergo imprisonment for life under section 302/149, I.P.C., six months' R.I. under section 323/149, I.P.C. and on a year's R.I. under section 148, I.P.C. and appellants Ram Kishan, Sia Ram and Subedar were convicted and sentenced to undergo imprisonment for life under section 302/ 149, I.P.C., six month's R.I. under section 323/149, I.P.C. and one year's R.I. under section 147, I.P.C. Co -accused Nirottam was, however, held not guilty and was, therefore, acquitted of charges levelled against him.
(2.) BRIEFLY stated that prosecution case is that the appellants Nekram, Chittar alias Chet Ram and Sia Ram are sons of appellant Ram Kishan and appellant Subedar is brother -in -law (Sala) of appellant Siva Ram and accused Nirottam is his Serhu. It is alleged that on 9.9.1977 deceased Pooran son of Jhunku and nephew of complainant Sardar was carrying pucca bricks to and from the house of Mewa Ram of village Agaunapur since early morning and when at about 1.30 P.M. he after loosening his asses, was coming back to his house, his asses entered into the sugarcane field of appellant Ram Kishan. Ram Kishan started hurling abuses to Pooran with the result an altercation followed. Pooran advancing further reached the plot of one Raj Kumar which was situated near the village but in the meantime Ram Kishan loudly called upon his sons to come with guns and country made pistols and to hill him. Appellant Nek Ram armed with single barrel licensed gun of Daya Ram, Chittar alias Chet Ram armed with a country made pistol, Sia Ram Subedar and Nirottam armed with lath is came there and immediately thereafter Nek Ram and Chittar fired shots at Pooran with the result he was injured and fell down. Sardar tried to save him. He was also beaten with lathis. Sardar got a written report scribed by one Shyam Swaroop, of Palra and lodged it at police station Aliganj at about 4 P.M. Pooran died on the way while being taken away to police station on a cot by Sardar etc. Appellant Sia Ram had also lodged a written report on 11 -9 -1977 at police station Aliganj at about 7 P.M. purporting to have been scribed by one Surendra Pal Singh of Palra and thumb -marked by Siya Ram to the effect that on 9 -9 -1977 at or about 2.30 P.M. when he had gone to see his maize crop in the field behind the grove of Basant he found 7 -8 asses in the field. He turned them out of the said field and protested to the washerman of those asses and was taking them to the cattle -pend at Aliganj. Accused Ram Naresh, Ved Ram, Munshi and their ailing father Kaddhi behind them and Sardar, Moharpal, Pooran and Anganu came there. Chetram alias Chittar and Nek Ram joined Siya Ram. Ram Kishan and Nappu also happened to reach there. Ram Naresh and others intervened with a view to stop asses from being taken to the cattlepond and started Marpit. Ved Ram gave a lathi blow on the head of Chetram alias Chittar and Ram Naresh gave a spear blow to Chatram who fell down with a spear injury in his left hand. Mohar Pal gave a lathi blow at Chetram who thereupon became unconscious yet he was given more lathi blows and a spear blow by Ram Naresh. Angamu, Vedram, Munshi caused lathi injuries to Mappu and Sardar gave a lathi blow to Nekram and Ram Kishan respectively. Sammu son of Raghhu also happened to reach there and he gave several lathi blows to Ram Kishan.
(3.) ACCORDING to Siya Ram, when this Marpit was going on someone from the grove fired a shot which hit Pooran and he died then and there. The incident took place near the village pond and grove of one Haripal. After the death of Pooran both the groups separated and went away. Kaddhi who was ill had not taken part in the incident. Since the routes to the police station were guarded by his opponents nobody could reach the police station earlier to lodge the First Information Report.;