Kalimullah Khan, J. - (1.) THIS Government Appeal has been filed under section 378 Cr.P.C. by State of Uttar Pradesh against accused Babu Ram and nine others challenging the impugned judgment and order dated 31.5.1983 whereby learned Trial Court has recorded a finding of acquittal of accused -respondents Babu Ram, Pooran sons of Shekhar, Lakhmi Chand son of Ram Niwas, Bangali, Rameshwar sons of Loti, Loti son of Harphool, Som Pal, Sukkhar sons of Chatru, Shekhar, Chatru sons of Fakira out of whom during the pendency of this criminal appeal accused -respondents Babu Ram, Pooran, Loti, Shekhar and Chatru have expired, therefore, vide order dated 13.2.2014 appeal against them has been abated. Now this judgment pertains only in respect of accused Lakhmi Chand son of Ram Niwas, Bangali, Rameshwar sons of Loti, Som Pal, Sukkhar sons of Chatru alone. Accused Bangali was charged for the offence punishable under sections 147, 323/149, 452 and 302/149 I.P.C. whereas rest of the aforesaid accused were charged under sections 148, 323/149, 452 and 302/149 I.P.C. They had denied the charge and claimed their trial.
(2.) THE incident is dated 27.12.1980 at about 9:00 a.m. As per the prosecution case 9 or 10 days ago from the date of incident accused Babu Ram had lodged a false report of theft against Katara and Jaswant, who are brothers of the first informant, Fatta son of Ghasi, R/o Mohabalipur, P.S. Charthawal, District Muzaffar Nagar. In that F.I.R. Both the accused Katara and Jaswant were bailed out by the Court. On the aforesaid date and time of incident, Katara was going to Charthawal. In the way near the house of Niranjan, accused Babu Ram armed with Ballam met him and extended threat that he would teach him a lesson for getting bail in the aforesaid theft case which resulted into some altercation in between the two. Katara went to his house. Soon after, accused Pooran, Loti armed with spear (Bhala), Chatru armed with Garasa, Som Pal armed with axe, Rameshwar armed with gun and Bangali armed with lathi attacked Katara in his house and started beating him. Accused Babu Ram inflicted Ballam injuries in the neck of Katara, all the remaining accused used their respective weapons. Accused Lakhmi armed with gun was instigating the remaining accused to commit the murder of Katara. Witnesses Niranja and Mahakar Singh went to rescue. Katara fell down unconscious after sustaining injuries All the accused managed to their escape good. Mahakar Singh escorted Katara in a Bogi to hospital. Fatta, real brother of Katara, hereinafter called the 'deceased' lodged a written report at P.S. Charthawal. On its basis case was registered as crime No. 170 of 1980 under sections 147, 148, 149, 452, 323 and 308 I.P.C. on 27.12.1980 at 10:15 a.m. in the G.D. vide rapat No. 15. Chik report was drawn accordingly. The injuries of Fatta, informant are noted in the G.D. Investigation was started. During the course of investigation, I.O. was informed vide G.D. rapat No. 17 at 11:35 a.m. the same day that Katara expired at P.H.C., Charthawal. The case was, therefore, converted through the aforesaid G.D. rapat No. 17 under section 304 I.P.C. I.O. sent the informant Fatta alongwith Chitthi Mahrubi for his medical examination. I.O. prepared the site plan; recovered blood stained earth from the place of incident; interrogated witnesses Mahakar Singh, Niranjan Singh and others under section 161 Cr.P.C.; prepared panchayatnama and other necessary papers and thereafter sealed dead body and sent to mortuary for post -mortem examination. Autopsy was drawn on 28.12.1980 at 1:30 p.m. Five incised wounds, two multiple abrasions, two contusions, one lacerated wound and one abrasion were found on the body of deceased. After completing the investigation, charge -sheet was submitted against all the ten accused persons under sections 147, 148, 149; 452, 323 and 302 I.P.C. The case was committed to the Court of Sessions vide order dated 7.8.1981 passed by learned C.J.M., Muzaffar Nagar. After framing the charge, prosecution examined nine witnesses in all. Accused were examined under section 313 Cr.P.C. They denied the allegations and evidence adduced against them. Accused Lakhmi Chand pleaded his alibi and stated that at the time of occurrence, he was in the school and was not present at the spot. Rest accused Pooran, Bangali, Rameshwar, Loti, Som Pal, Shekhar stated that on the day of incident at 9:00 a.m. Katara (deceased), Fatta, Niranjan, Mahakar Singh etc. 22 persons had caused injuries to them, therefore, they wielded lathis in their self defence.
(3.) IT appears that a number of persons from the accused side including some of the accused received injuries in the same incident regarding which a cross case was registered in which charge -sheet was submitted and trial proceeded. Accused were called upon to enter into their defence. Accused examined in their defence Subhash Chandara Tyagi, D.W.1 and Jai Prakash, Head Clerk, D.W.2.;