- (1.) FOUR persons, namely Khem Karan, Arjun Lal, Vishun Dayal and Jagan Nath were charged by the Sessions Judge, Kheri for offences punishable under Section 302 read with 34 IPC. The learned Judge vide judgment and order dated 22-12-1080 passed in Sessions Trial No. 4214 of 1980 acquitted Jagan Nath for the said offence but convicted the other three thereunder and sentenced each of them to undergo imprisonment for life. Aggrieved by their conviction and sentence, Khem Karan, Arjun Lal and Vishun Dayal have preferred the present appeal.
(2.) SHORTLY stated, the prosecution case runs as under: Informant Gaya Din is son of the deceased Pyare Lal. At the time of the incident the informant Gaya Din PW-1, his father Pyare Lal, his mother Smt. Bhagwati, PW-9, his sister Smt. Lilawati, PW-10, acquitted accused Jagan Nath and the three appellants, namely, Khem Karan, Arjun Lal and Vishun Dayal were residing in village Rautapur within the limits of Police Station Mitauli, District Kheri. There was enmity between the appellants and the acquitted accused Jagan Nath, real brothers, inter se, on one hand and the deceased Pyare Lal on the other. On the date of the incident, i. e. 8th July, 1980, sometimes in the morning, while deceased Pyare Lal was affixing pegs in the corner of the road situate to the west of the grove of the appellants and the acquitted accused Jagan Nath, appellant Khem Karan asked him to uproot them. Pyare Lal replied that after the monsoons he would uproot them. On this Khem Karan told him that if he did not uproot them it would not be good. Saying this, Khem Karan went away. The same evening at about 6 p. m. , when the informant Gaya Din was inside his house and his father Pyare Lal was sitting on the Chabutara (raised platform) situate outside, appellants Khem Karan, Arjun Lal and Vishun Dayal armed with lathi and acquitted accused Jagan Nath armed with a Paina (cane) came. Khem Karan enquired from Pyare Lal whether he would uproot the pegs. Pyare Lal replied that he would uproot them 2 to 4 days after the monsoon. On this appellant Arjun said "yah SALA NETA AUR THEKEDAR BANTA HAI, AAJ SALE KO HI MARNA HAI. " Thereafter Khem Karan, Arjun Lal and Vishun Dayal with lathis and Jagan Nath with a cane started assaulting Pyare Lal who fell down as a consequence thereof. Thereafter the appellant Khem Karan inflicted a lathi blow on the head of Pyare Lal. Then the appellants and acquitted accused Jagan Nath ran away. Apart from the informant Gaya Din, this incident is said to have been seen by his mother Smt. Bhagwati PW-9 and his sister Smt. Lilawati. PW-10 and Ram Saran, Moolchand, Kesari and Makhan, PWs- 2, 3, 4 and 5 respectively. Informant and others saw that there was some life left in Pyare Lal. They put him on a cot and brought him inside the house, where half an hour later he succumbed to his injuries. Thereafter the informant called the Chaukidar and along with him and his grand-father Gajadhar went to police station Mitauli where he lodged his FIR. Evidence of constable clerk Arvind Kishore Dixit shows that on 8-7-1980 (on the date of the incident) at 9. 45 p. m. Gaya Daya Din came to Police Station Mitauli and on his dictation he recorded his FIR Exhibit Ka-1. Autopsy on the corpse of Pyare Lal was conducted on 10-7-1980 at 3 p. m. by Dr. Jagdish Prasad Saxena, PW-6 who found on it the following anti mortem injuries: (1) Vertical Abraded contusion 12 cm x 2 cm on right side head 10 c. m. above right ear. (2) Contusion 11 c. m. x 4 c. m. on back of left fore- arm. 4 c. m. above left wrist. (3) Contusion 9 c. m. x 4 c. m. on back of right fore-arm, 2 c. m. below elbow joint. (4) Contusion 14 c. m. x 4 c. m. on lower part of right neck, 4 c. m. below sub-mandibular boarder. (5) Vertical contusion 30 c. m. x 7 c. m. on back of left chest and abdomen, 8-1/2 c. m. outer to midline. (6) Contusion 2 c. m. x 1 c. m. on outer aspect of right thigh, 11 c. m. above right knee. On internal examination Dr. Saxena found liner fracture 8 cms. long of right parietal and frontal bones under Injury No. 1. The cause of death spelt in the post-mortem report and in the deposition of the autopsy surgeon in the trial Court was coma on account of head injury.
(3.) THE bulk of the investigation was done by Inspector Incharge of P. S. Mitauli Vidhya Ram, PW-11. His evidence shows: On 8-7-1980 FIR was lodged in his presence. He thereafter left for the place of the incident which he reached at 10. 30 p. m. He found the corpse of deceased Pyare Lal beneath the shed of informant Gaya Din. He thereafter performed the inquest on it and sent it for autopsy. Next morning, he recorded statements of Gaya Din, Ram Swaroop, Moolchandra, Makhan, Kesari, Smt. Lilawati, Smt. Bhagwati and others and prepared site plan on the pointing of the informant. After completing investigation, on 23-7- 1989 he submitted charge-sheet. The case was committed to the Court of Sessions in the usual manner where the appellants and the acquitted accused Jagan Nath were charged for the offence punishable under Section 302 read with 34 IPC. They pleaded not guilty to the charge and claimed to be tried. Their defence was of denial. During trial, the prosecution examined eleven witnesses. Seven of them, namely Gayadin, Ram Swaroop, Moolchand, Kesari, Makhan, Smt. Bhagwati and Smt. Lilawati, PWs. 1, 2, 3, 4, 5, 9 and 10 were examined as eye-witnesses, but apart from the informant Gaya Din PW-1, Smt. Bhagwati, PW-9 and Smt. Lilawati, PW-10 the rest turned hostile. The learned Trial Judge believed the evidence of Gayadin, Smt. Bhagwati and Smt. Lilawati vis-a- vis the appellants and convicted and sentenced them in the manner stated in paragraph 1, but acquitted co-accused Jagan Nath because the evidence of the informant Gayadin showed that he was standing at some distance with a cane in his hand and did not assault the deceased. Hence this appeal.;