Vishnu Sahai, J. - (1.) -Eleven persons, namely, Shamsher Singh, his sons Harbux Singh, Shiv Bux Singh, Guru Bux Singh and Gaya Bux Singh, his brother Raj Bahadur Singh, his nephews Sahdev Singh and Jaidev Singh (sons of Raj Bahadur Singh), Nem Singh, Jahan Singh and Bare Lal (party men of Shamsher Singh) were tried by Vth Additional Sessions Judge, Mainpuri in Sessions Trial No. 6 of 1981 for offences punishable under Section 148/302/149, I.P.C. Vide judgment and order dated 7.9.1981, the learned Judge acquitted Shamsher Singh, Sahdev Singh, Jahan Singh and Bare Lal but convicted and sentenced Harbux Singh, Shiv Bux Singh, Gaya Bux Singh, Raj Bahadur Singh, Jaidev Singh, Guru Bux Singh and Nem Singh, in the manner stated hereinafter : (i) Under Section 302/149, I.P.C. to imprisonment for life ; (ii) Under Section 148, I.P.C. to one year's R.I. The sentences on both the counts were directed to run concurrently.
(2.) AGGRIEVED by their convictions and sentences Guru Bux Singh, Raj Bahadur Singh and Nem Singh preferred in this Court Criminal Appeal No. 2046 of 1981 and Har Bux Singh, Shiv Bux Singh, Gaya Bux Singh and Jaidev Singh, Criminal Appeal No. 2184 of 1981. The State of U. P., however, did not prefer any appeal against the acquittal of Shamsher Singh, Sahdev Singh, Jahan Singh and Bare Lal. Since both these appeals arise out of a common factual matrix and impugned judgment we are disposing them of by one judgment. Shortly stated, the prosecution case runs as under : Informant Deep Singh P.W. 1 is the cousin brother of deceased Lakhan Singh. At the time of the incident, the informant, the deceased, Madan Pal Singh P.W. 2 the seven appellants and the four acquitted accused were residing in village Harisinghpur hamlet of Kishni within the limits of Police Station Kishni, district Mainpuri. There was enmity between the acquitted accused Shamsher Singh on one hand and the deceased Lakhan Singh on the other, because the latter helped Smt. Ram Pyari P.W. 3 and the former (Shamsher Singh) wanted to forcibly occupy her land. Sometimes in the year 1980 Shamsher Singh had lodged an F.I.R. of dacoity against Lakhan Singh and others but the same, later on, was found to be false. On 20.9.1980, at about 8.30 a.m., the informant was taking his cattle and when he reached the field of Dulare, he heard cries of "bachav bachav" (save save). He saw the seven appellants, namely, Guru Bux Singh, Raj Bahadur Singh, Nem Singh, Har Bux Singh, Shiv Bux Singh, Gaya Bux Singh and Jaidev Singh and the acquitted accused Shamsher Singh, Shahdev Singh, Jahan Singh and Bare Lal assaulting Lakhan Singh. Shamsher Singh, Shahdev Singh, Nem Singh, Jahan Singh and Bare Lal were armed with ballam (spear), Harbux Singh, Shiv Bux Singh, Guru Bux Singh, Gaya Bux Singh and Raj Bahadur Singh with dhariyas and Jaidev Singh with a kanta. The informant found that Lakhan Singh was being assaulted near the house of Deen Dayal. Apart from the informant, Madan Pal Singh P.W. 2 also saw the incident. When the informant and Madan Pal Singh challenged the appellants and the acquitted accused, they ran away. Thereafter, the informant got the F.I.R. scribed by Madan Pal and signed the same and lodged it at Police Station Kishni.
(3.) THE evidence of S.I. Dhani Ram Sharma P.W. 5 shows that informant Deep Singh lodged the F.I.R. in his presence ; on the basis of the F.I.R., Head Moharrir Jagdish Prasad registered the case in the General Dairy and prepared chick F.I.R. He, thereafter, took over the investigation and interrogated Deep Singh at the police station and left for the place of the incident, which he reached at 10.10 a.m. and where he recorded the statements of Madan Pal and Vijay Bahadur. At 10.30 a.m., he performed the inquest on the corp the deceased Lakhan Singh and, thereafter, prepared photo-lash and challan-lash and sent the corpse for autopsy. He then recorded the statement of some witnesses. He next prepared site plan (Ext. Ka-7). From the place of incident, he seized plain and blood stained earth in separate containers und?r recovery memos. Next day, he went to the house of the accused persons, but could not find them. From his evidence, it appears that the remaining investigation was done by Mr. Ratish Mohan Swami. 5A. It is pertinent to mention that Ratish Mohan Swami, who conducted the remaining investigation and submitted the charge-sheet, has not been examined by the prosecution. The autopsy on the corpse of the deceased Lakhan Singh was conducted on 21.9.1980, at 4.15 p.m. by Dr. Jaswant Singh P.W. 4, who found on it, the following ante-mortem injuries : ...[VERNACULAR TEXT OMMITED]... In English, the first five injuries would be read as incised wounds ; the sixth and seventh injuries as abraded contusions. In the opinion of Dr. Jaswant Singh, the aforesaid injuries could be caused by sharp edged weapon like kanta, dhariaya, gandasa etc. It is pertinent to mention that since the deceased did not sustain any typical ballam (spear) injury, i.e., punctured or stab wound, in examination-in-chief, Dr. Jaswant Singh was asked whether ballam, the blade of which had sharp edges could cause said injuries. He replied in negative. In his cross-examination, Dr. Jaswant Singh stated that Injury Nos. 6 and 7 (abraded contusion) were attributable to blunt weapon.;