- (1.) M. C. Jain, J. Five appellants preferred this appeal. They were (1) Mangoo (2) Thakura (3) Ganesha (4) Motiyan son of Shamla and (5) Motiyan son of Durga. All of them have been convicted by the judgment dated 30-3- 1981 passed by Sri H. C. Shukla, the then Vth Additional Sessions Judge, Hamirpur. All of them have been convicted under Section 302 I. P. C. read with Section 149 I. P. C. and sentenced to life imprisonment. Accused Mangoo, Thakura, Ganesha and Motiyan son of Shamla have further been convicted under Section 148 I. P. C. and sentenced to one year's rigorous imprisonment, whereas Motiyan son of Durga has been convicted under Section 147 I. P. C. with sentence of 6 months rigorous imprisonment. The sentences have been ordered to run concurrently. Mangoo, Thakura and Motiyan son of Shamla were armed with axes and Ganesha with Pharsa. Motiyan son of Durga was allegedly armed with lathi. Out of the five appellants Motiya Son of Shamla and Thakura died during the pendency of the appeal and as such the appeal abates so far as they are concerned. Obviously, the Court is now concerned with the remaining three appellants, Mangoo, Ganesha and Motiyan son of Durga.
(2.) BOARD features of the case may be noted. The incident occurred on 7-2-1980 at about 10. 30 a. m. in village Akauna, P. S. Ajnar, District Hamirpur and the F. I. R. was lodged the same day at 1 p. m. by an eyewitness Bhan Singh PW 1, the distance of the police station being one mile. The deceased was Prabhu Dayal brother of the informant Bhan Singh P. W. 1. At the time of the incident, Prabhu Dayal deceased was watering his field from a well known as "chandeloo Kuan". A pumping set had been fixed by him for watering the crops and as pipes for watering were being spread by the eyewitnesses Bhan Singh PW 1, Gulab Singh PW 2 and Mulayam Singh PW 4 (son of the deceased ). All the five assailants allegedly reached there with the weapons detailed earlier and exhorted each other to kill Prabhu Dayal. All of them started inflicting injuries on Prabhu Dayal, whereafter they fled away towards western side. Prabhu Dayal died on the spot. There was some dispute about watering of fields from the well from before. Two days before the incident at about noon time Prabhu Dayal was fixing the machine over the above mentioned well when Thakura, Mangoo and Motiyan son of Shamla appeared there and asked him not to fit the machine. Hot words and abuses were traded. Phool Singh PW 3 and Karan Singh were also present. It was ultimately agreed that the accused persons would water their fields first and thereafter Prabhu Dayal would take his turn. However, the accused persons did not water their fields and the well remained unutilized for two days. This incident leading to the murder of Prabhu Dayal occurred when he was watering the field on 7-2-1980 at about 10. 30 a. m. On the lodging of F. I. R. by Bhan Singh PW 1 by oral narration, a case was registered and the police swung into action. The investigation having been taken up by S. O. Chandra Pal Singh PW 7, he reached the spot, recorded the statements of the witnesses, prepared the inquest report and completed other formalities. The dead body was sent for post mortem which was conducted by Dr. Ghanshyam Pandey PW 6 on 8-2-1980 at 1. 30 p. m. The deceased was aged about 37 years and about one day had passed since he died. The following ante-mortem injuries were found on his person: (1) Incised wound 13 cm x 6 cm x bone deep on right side starting from centre of right cheek. (buccinator muscle), going towards back 2 cm below the right ear. Skin sub-cut, tissue sterno mastoid muscles, coroted vessels with fracture of 6th and 7th cervical vertebra into pieces and partial amputation thereof. (2) Incised wound 5 cm x 2 cm x muscle deep in left side of neck in the direction over left sterno mastoid muscle at its middle. (3) Incised wound 4 cm x 1 cm x muscle deep transverse over occipit. (4) Incised wound 3 cm x 1 cm x muscle deep, 24 cm above injury No. 3, oblique in direction. (5) Incised wound 2 cm x 1 cm x muscle deep transverse direction in left parietal prominence. (6) Incised wound 2 cm x 1 cm x muscle deep in top of skull direction front to back, oblique from left to right over parietal bones. (7) Incised wound 10 cm x 2 cm x muscle deep at the junction of skull and neck at the level of lower part of ears on back. (8) Incised wound 3 cm x 1/2 cm x skin deep in the centre of right scapula obliquely upside down. (9) Multiple contusions in area of 8 cm x 6 cm in left scapula. The death had occurred due to shock and haemorrhage as a result of injury No. 1.
(3.) THE appellants pleaded false implication due to enmity, but no evidence was adduced by them in defence. We have heard Sri D. N. Wali, learned counsel for the appellants and Sri A. K. Verma learned A. G. A. from the side of the State.;