Palok Basu, J. - (1.) 29 accused were put up for trial before II Addl. Sessions Judge. Ballia in Sessions Trial No. 56 of 1978 and at the con- - clusion of the trial by the judgment dated 4-4-1979 the learned Trial Judge has convicted 10 appellants, namely, (1) Raj Narain (2) Deepa (3) Chhangur, (4)(Ram Dayal (5) Raja Ram (6) Jairam (7) Hareram (8) Rarnnath (9) Baliram and (10) Jagarnath under section 302 IPC read with section 149 IPC and various other sections such as under section 307 IPC, 323, 324, 452, 436, 147, 148, 149 IPC. It may be mentioned here that so far as Raj Narain is concerned he was convicted under section 302 IPC simpliciter. All the appellants have the sentence of Life Imprisonment on the major charge and various terms of Rigorous Imprisonment with regard to other charges which shall be mentioned and discussed at the relevant stage in this judgment. The informant Sudama has filed revision against the acquittal of 19 respondents, namely, Baleshwar Yadav, Dhup Narain Yadav, Vishwanath Yadav, Rajnath Yadav, Shankar Yadav, Chhiceshwar Yadav, Rameshwar Yadav, Parmeshwar Yadav, Bashisht Pandey, Ram Biyas Pandey, Sudarshan Yadav, Bir Bahadur Yadav, Bishu Yadav, Uma Yadav, Shewadhar Yadav, Ram Dahin Vadav, Hare Ram Yadav, Sheonath Yadav and Surajdin Yadav on the charges framed against them also. Since both the matters arise out of the same case, they are being disposed of together.
(2.) SRI Gopal Chaturvedi, learned counsel for the appellants and SRI S. P. Singh, learned Government Advocate for the respective parties have been heard. The entire record has been examined. It may be noted here that against the acquittal of the aforesaid 19 persons the State of U. P. have not filed any appeal and the finding recorded by the learned Trial Judge with regard to the acquittal of those accused has become final between the State and the accused. The charge against the appellants was that on 17-9-1977 at about 7.30 A.M. they formed an unlawful assembly and in prosecution of the common object they committed murder of Dharamdeo and caused hurt to Sri Ram, Sint. Phulkeshri, Shanti and Sudama and set fire to a thatched roof which was punishable under section 147 CrPC, 148 CrPC, 302 IPC, 302/149 IPC, 307 IPC, 307/149 IPC, 323 and 323/149 IPC, 324 and 324/149 IPC, 452 IPC and 436/149 IPC. The prosecution case is that on 16-9-1977 some one had pelted stones and brick-bats in the house of Bali Ram accused at about 9 P.M. for which Rama and Dharamdeo deceased were suspected. Consequently there were exchange of abuses from both sides. Raj Narain and Jai Ram appellants had threatened. that they will see the prosecution side. On 17-9-1977 at about 7.30 A.M. 29 accused came to the door of Sudama and at the instigation of Baleshwar accused, set fire to the Palani and started assaulting prosecution side as a result of which Dharamdeo deceased died, Sri Ram, Smt. Phulkeshri, Shanti and Sudama informant received various injuries. The appellant Raj Narain, Jai Ram, Rajaram, Hare Ram and Chhangur were said to have been armed with spears (Bhalas) while accused Bali Ram was said to have been armed with Gandasa while other four appellants, namely, Deepa, Jagarnath, Ramnath and Ram Dayal were said to have been armed with lathis.
(3.) IT may be mentioned here at the out-set that from the evidence produced during the trial specific roles were attributable only to the ten appellants and, therefore, the learned trial Judge gave benefit of doubt to 19 accused who are respondents in the revision and recorded conviction as detailed above with regard to the ten appellants. The further fact to be noted here is that Baleshwar accused who was said to have been present and who instigated all the accused, to use the exact words mentioned in the FIR 'MAN SE MAR DO VA PALANT PHUNK DO HAM DEKH LENGE' has been acquitted only the trial Judge on the finding that the evidence against him was weak in nature and that on the facts and circumstances it was neither accessary nor expedient to expect that the action of the accused would be dependent only on the said instigation of Baleshwar accused. The said acquittal of Baleshwar accused and for that matter, rest of the accused have not been challenged by the State of U. P. in the appeal. Pw 1, Sudama is said to have lodged an FIR at the police-station Kotwali naming therein all the 29 accused. Pw 6 Satya Narain Rai was the Head-constable who proved the Chik FIR Ext. Ka 2 and registered the case in the General Diary entry no. 14 at 9.15 A.M. vide Copy Ext. Ka 3. It is said that about the death of Dharamdeo a memo was received from the hospital at 9.45 A.M. denoting therein that Dharamdeo had expired in the hospital at 8.20 A.M. G.D. entry no. 40 has been proved to that effect, a true copy of which is Ext. Ka 4. Special report was consequently prepared and sent by the Head-constable to the authorities vide copy of the entry filed as Ext. Ka 5.;