ANANT KUMAR, J. - (1.) THIS criminal appeal under Section 374(2) Cr.P.C. has been filed by the accused persons Yogendra and Virendra Singh sons of Rajman Singh and Tej Bahadur Singh son of Dharam Deo Singh @ Mithaloo Singh, who have been convicted and sentenced by Sri S.K. Misra, Sessions Judge, Azamgarh, in respect of Sessions Trial No. 130 of 1985 -State Vs. Dharamdeo and others, passed on 31.8.1988, under Sections 148, 302/149 I.P.C., arising out of Crime No. 142 of 1984, Police Station Deogaon, District Azamgarh.
(2.) IN brief, the prosecution story runs like this, that the complainant Chhabiraji, wife of late Sri Nath Singh, resident of village Rampur Kathrawa, Police Station Deogaon, District Azamgarh had lodged an F.I.R. dated 27.8.1984 at 12.30 P.M. wherein it has been stated that since last 15 -20 years, there was dispute in respect of abadi land between the sons of the complainant namely, Udai Narayan @ Udayee and Dharamdeo @ Mithaloo and since then enmity was there. About quarter to four years back, there was marpeet between both the parties regarding which a case under Section 307 I.P.C. was pending in the court of Judicial Magistrate, Lalganj. On the day of the occurrence, the son of the complainant Udai Narayan had gone to see his paddy field and when he was coming back at about 10.30 A.M. and when he reached at the eastern boundary of field of Ramdeo Singh, the accused persons Dharmdeo @ Mithaloo, Yogendra, Virendra, sons of Rajman, Rajman son of Tulsi and Tej Bahadur son of Dharmdeo armed with country made pistol (Tamancha) and knives came there and surrounded Udai Narayan @ Udayee and started piercing knives. When he raised alarm, the complainant Chhabiraji, Chandrabali son of Deonandan, Banshu son of Umrao, Satya Narayan son of Ram Karan, who were co -villagers and were working in their respective fields, came to his rescue and challenged the accused persons but the accused persons continued with such act till Udai Narayan died due to injuries of knives, then the accused persons leaving Tamancha and cartridges in the field and taking the knives run away. This incident has been caused by accused persons due to old enmity. Dead body of the deceased, Tamancha and cartridges were lying in the field of Ramdeo. On the basis of this complaint, the F.I.R. was lodged and police came into action and dead body of the deceased was sent for post -mortem. On the dead body of the deceased as many as 13 ante -mortem injuries of different dimensions, as detailed below, were found. 1.Incised wound 2 cm x 1/2 cm x muscle deep on face. Face was closed to angle of mouth and margins were clean cut. 2.Incised wound 2 cm x 1/2 cm x muscle deep on face on left side, 6 cm external to left angle of mouth. Margins were clean cut. 3.Incised wound 1.5 cm x 1/2 cm x muscle deep, on right side face in the middle of the mouth bone. Margins clean cut and was obliquely placed. 4.Multiple stab wound in an area of 14 cm x 15 cm on the middle of the neck and both sides of collar -bone in all 23 injuries -each measuring 1/2 cm x 1/2 cm x neck contents deep to 4 1/2 cm x 1 cm x neck contents deep. Margins clean cut and its direction was downwards. 5. Incised wound 2 cm x 1/2 cm x muscle deep on left side of stomach, 10 cm above the umbilicus. Margins were clean cut, 11 O'clock position. 6.Incised wound 2 cm x 1 cm x muscle deep on left side of stomach 4.5 cm outer to injury no. 5. Its tail was downwards and margins clean cut. 7.Stab wound 2 cm x 1 cm x stomach content deep on left side 19 cm over to umbilicus. Margins clean cut and direction was downwards medially. 8.Stab wound 2 cm x 1 cm x abdomen deep on right side stomach, 5 cm below right nipple. Margins were clean cut and direction was inward and on opening the wound, liver was found lacerated. 9.Stab wound 2 cm x 1 cm x abdomen contents deep right side backwards, 23 cm below right stipulla and 13 cm lateral to mid -line. Margins were clean cut, obliquely placed and on opening the wound, liver was found lacerated. 10. Stab wound 2 cm x 1 cm x abdomen deep on right side back, 1 cm inner to injury no. 9 and was obliquely placed, direction was upward medially, margins were clean cut. On opening the wound, umbilicus and stomach were found lacerated. 11. Stab wound 2 cm x 1 cm x abdomen deep on right side back, 4 cm anterior to scapula -outer side. Margins clean cut. 12. Stab wound 2 cm x 1/2 cm x abdomen deep on right side back, 33 cm below interior area of right scapula and 2 cm lateral to mid line. 13. Stab wound 1.5 cm x 1/2 cm x abdomen deep on right side back 4 cm lateral to injury no. 12. Margins were clean cut and umbilicus was lacerated.
(3.) AFTER investigation, charge sheet was submitted in the court and charges were framed by the Vth Additional Sessions Judge, Azamgarh against five accused persons i.e. Dharmdeo Singh alias Mithaloo Singh, Yogendra Singh, Virendra Singh, Rajman Singh and Tej Bahadur Singh, under Sections 148, 302/149 I.P.C. Trial proceeded and on behalf of the prosecution. PW -1 Banshoo, PW -2 Chandrabali, PW -3 Harihar and PW -4 Smt. Chhabiraji complainant were examined as witnesses of fact whereas other formal witnesses PW -5 Chandrabhan Singh, PW -6 Inspector C.B.C.I.D. Daya Shanker Dwivedi, PW -7 S.I. Raj Bahadur Singh, PW -8 Dr. S.K. Gupta, PW -9 Constable Ramjeet were examined. On behalf of defence DW -1 Ashok Kumar, DW -2 Munnar and DW -3 Arjun Prasad Tiwari were also examined. After hearing the learned counsel for defence as well as prosecution, the learned Sessions Judge, Azamgarh vide its judgment and order dated 31.8.1988 has convicted and sentenced the accused persons -appellants Yogendra Singh, Virendra Singh and Tej Bahadur Singh under Section 302 read with Section 34 I.P.C. to imprisonment for life. However, the other accused persons Dharmdeo @ Mithaloo and Rajman were acquitted. Against the said conviction and sentence, the present appeal has been filed. We have heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri A.K. Dwivedi and Sri Kameshwar Singh, learned counsel for the appellants and Sri Sangam Lal Kesarwani, learned A.G.A. for the State and perused the record.;