M.C.JAIN, J. - (1.) FOUR accused -appellants have preferred this appeal. They are Brahma Giri and his three sons -Brij Deo Giri, Kishun Deo Giri and Kunjan Giri. The judgment assailed is one dated 21 -8 -1981 passed by Sri J.P. Singh, the then IVth Additional Judge, Varanasi in S.T. No. 69 of 1980. All of them have been convicted under Section 302 IPC read with Section 34 IPC with the sentence of life imprisonment. The connected Criminal Revision No. 1817 of 1981 has been filed by Ram Narain Giri for the enhancement of the sentence, i.e., to convert the life imprisonment passed against the accused into death sentence. The criminal appeal and criminal revision, being connected to each other, are now decided by this common judgment and order.
(2.) IT may also be stated before proceeding further that the appellant Brahma Giri died during the pendency of the appeal and the same abated in respect of him under order dated 12 -8 -2004. Presently, the Court is concerned with the remaining three accused -appellants who are the sons of the deceased appellant. The incident occurred on 5 -6 -1979 at about 8.00 a.m. in village Lokuwa Brahmasthan, Police Station Dhanapur, District Varanasi situated at about 5 miles from the concerned Police Station. The report was lodged the same day at 10.10 a.m. by Shambhoo Giri deceased himself who was alive by then. On the fateful day and time, the deceased Shambhoo Giri along with his servant Harish Chand was going to Saheedgaon to board a bus. He was carrying Khowa (concentrated milk preparation). When he reached near Lokuwa Brahmasthan, owing to old enmity, the above named four accused -appellants armed with lathis and Gadasa arrived there and started assaulting him. The alarm raised by him and his servant Harish Chand attracted the witnesses Ram Narain Giri P.W. 1 and Permanand Giri P.W. 2 village Mathia. He himself as also resident of village Mathia. When he (Shambhoo Giri) feel down, the accused persons continued to assault him. His both the legs had been fractured and he had received severe injuries in his head. The accused Brij Deo Giri was a police constable. After assaulting him, the accused ran away. The witnesses carried the injured Shambhoo Giri on a cot to the police station where he lodged the FIR. Initially, a case under Section 307 IPC was registered. The investigation was taken up by S.O. Mahabal Singh P.W. 9. He recorded the statement of Shambhoo Giri and sent him for medical examination to Dhanapur Dispensary. He also went there with other police personnel. Medical Officer was not available at Dhanapur Dispensary. He sent the injured to Sakaldiha Dispensary for medical examination and aid. Before constable Hari Deo Ram P.W. 5 could reach the dispensary of Sakaldiha with Shambhoo Giri, he died. The doctor at Sakaldiha declared him to be dead. He brought the dead -body to Police Station, Dhanapur where inquest report of the dead -body was prepared. After completion of the formalities, the dead -body was sent for post -mortem through the same constable. Post -mortem over the dead -body of Shambhoo Giri was conducted by Dr. Nar Singh Sharma P.W. 7 on 6 -6 -1979 at 3.15 p.m. He was aged about 50 years and about one day had passed since he died.
(3.) THE following ante -mortem injuries were found on his person : (1) Incised wound 3 cm x 1/2 cm x bone deep on the right side head, 10 cm above right ear. (2) Lacerated wound 5 cm x 1 cm x bone deep on the right side head, 12 cm above right ear. (3) Incised wound 5 cm x 1/2 cm x bone deep on the right side head, 10 cm above right ear. (4) Lacerated wound 2 1/2 cm x 1/2 cm x skin deep on the middle of crown of head, 16 cm above right ear. (5) Lacerated wound 2 cm x 1/2 cm x skin deep on the left side crown of head, 12 cm above left ear. (6) Contusion 2 cm x 1 1/2 cm on the middle of forehead, 8 cm above roof of nose. (7) Contusion 12 cm x 5 cm on the left side forehead, nose and left eye. (8) Abraded contusion 5 cm x 2 cm on the outer aspect of lower part of right arm, 6 cm above elbow joint. (9) Multiple abrasions in an area of 3 cm x 1 cm on the back of right below joint. (10) Multiple abrasions in an area of 6 cm x 2 cm on the back and inner aspect of right forearm, 7 cm above wrist joint. (11) Multiple abraded contusions in an area of 5 cm x 2 cm on the back of right hand, 4 cm above the root of thumb. (12) Abrasion 2 cm x 1 cm on the outer aspect of right knee joint. (13) Multiple abraded contusions in an area of 5 cm x 3 cm on the medial aspect right leg, 3 cm above medial malleolus. (14) Lacerated wound 1 1/2 cm x 1/2 cm x bone deep on the medial aspect of right leg just above ankle joint, fracture both bones of leg (Tibia and Fibula). (15) Abraded contusion in an area of 15 cm x 6 cm on the frontal and outer aspect of left knee joint. (16) Multiple abraded contusions in an area of 30cm x 12 cm on the outer aspect of left leg and ankle joint. (17) Incised wound 1 cm x 1/4 cm x skin deep on the back of left thumb. (18) Lacerated wound 2 cm x 1 cm x muscle deep on the back of tip of left thumb, whole nail -bed dislocated. (19) Abraded contusion 7 cm x 1 cm on the medial aspect of left fore -arm, just below wrist joint. (20) Multiple abraded contusion in an area of 8 cm x 5 cm on the back of left arm lower part and left elbow joint. ;