- (1.) THIS criminal appeal by four accused persons namely Narveer Singh, Jangu, Ram Kailash and Vinod Kumar has been filed under section 374(2) Cr.P.C. against the judgment and order dated 23.4.1983 passed by IInd Additional Sessions Judge, Etawah in S.T. No. 166 of 1982 whereby appellant no. 1 has been convicted and sentenced under section 302 I.P.C. for life imprisonment and under section 148 I.P.C. for a period of 2 years rigorous imprisonment, appellant no. 2 Jangu has been convicted under section 302/34 I.P.C. for life imprisonment and under section 147 I.P.C. for a period of 1 years rigorous imprisonment, appellant no. 3 Ram Kailash has been convicted under section 302 I.P.C. for life imprisonment and under section 147 I.P.C. for a period of one year rigorous imprisonment and appellant no. 4 Vinod has been convicted under section 302/34 I.P.C. for life imprisonment and under section 147 I.P.C. for a period of one year rigorous imprisonment.
(2.) BEFORE describing the facts of the case it would be proper to mention here that this case was taken up for hearing time and again but none appeared on behalf of the appellants, so by the Court, amicus curiae Sri Samit Gopal, advocate was appointed and the case was heard on merits and in this regard on 29.8.2014, following order was passed by this Court. "Heard Sri Samit Gopal, learned Amicus Curiae appointed to prosecute the appeal on behalf of the appellants and Sri Rajiv Gupta, learned AGA for the State. This appeal filed by the appellant is against the judgment and order convicting them for life vide order dated 23.4.1983 in Sessions Trial No. 166 of 1982 passed by the IInd Additional Sessions Judge, Etawah. This appeal was filed in April, 1983 and all the appellants were enlarged on bail. However, when the appeal was called out for hearing neither the counsel for the appellants nor the appellants appeared and as such the Court vide order dated 31.3.2014 appointed Sri Samit Gopal as Amicus Curiae. This case was called out for hearing on 16.4.2014, 29.4.2014, 14.5.2014, 21.5.2014, 28.5.2014, 3.7.2014, 18.7.2014, 25.7.2014, 2.8.2014 and 8.8.2014 but yet none had appeared on behalf of the appellants except the Amicus Curiae, Sri Samit Gopal. Accordingly, following the dictum of the Supreme Court in the case of Surya Baksh Singh Vs. State of Uttar Pradesh, 2014 84 AllCriC 379 and the decision rendered in the case of K.S. Panduranga Vs. State of Karnatka, 2013 81 AllCriC 957, the court heard Sri Samit Gopal and the learned AGA at length on 28.8.2014. The arguments could not be completed and as such it was heard again on 29.8.2014 and the judgement was reserved."
(3.) SO far as the facts of the case are concerned, on 29.7.1982, an FIR was lodged at P.S. Usrahar, district Etawah by one Chhote Lal Tewari son of Raghuver Dayal, resident of village Girdharpur, Sarsai Navar, P.S. Usrahar, District Etawah. It was stated in the complaint that on 29.7.82 at 12 in the noon in the front of the house of the complainant, Indra Pal son of Narveer Singh Thakur and Rajesh son of Thakur Sobaran Singh, who are the resident of village Azizpur, came there and started plucking myrtle (esagnh) leaves, which was objected by the elder brother of the complainant Bazi Lal, thereupon Indra Pal and Rajesh started abusing so Bazi Lal slapped both of them. Hearing the commotion, the complainant and his daughter Sunil Kumari came out and intervened, thereupon both the boys left for their village giving threats. Thereafter in the evening, the brother of the complainant Bazi Lal with a sickle had gone to collect fodder from the field in front of their residential house. At about 5 p.m., Thakur Narveer Singh son of Nihal Singh having an axe (Qjlk), Jangu son of Sughar Dhanuk, Ram Kailash son of Lakhan Dhanuk and Vinod Kumar son of Ram Swaroop having lathi in their hands along with Rajesh and Indra Pal came to the field and challenged the brother of the complainant and surrounded him and started giving abuses. The brother of the complainant raised alarm and on hearing the noise, Tewari Singh, Mahendra Singh and Shiv Ram Singh reached the spot. In the meantime, Ram Kailash inflicted a lathi blow upon him, Jangu and Vinod Kumar exhorted to kill him, thereupon Narveer Singh gave a pharsa blow from behind on the head of Bazi Lal, after sustaining injuries, Bazi Lal fell down. When the complainant and other co -villagers challenged them, they ran away towards the village and after some time, the brother of the complainant died. It was, therefore, requested that his report be lodged and action be taken. On the basis of this written complaint, a chik FIR was prepared being crime no. 37 dated 29.7.82 at 19.35 p.m. and an entry to this effect was made in GD Rapat No. 26 at 19.35 p.m. on 29.7.82. The I.O. visited the place of occurrence, prepared site plan and collected the blood stained earth. He also took possession of the sickle, which the deceased had taken for cutting fodder from the field and sent the body of the deceased for postmortem and after recording the statements of the witnesses, filed the charge sheet against all the four accused appellants. Following injuries were found on the body of the deceased; "1. Lacerated wound 6cm x 0.5cm x bone deep on the right side of the scalp 4cm post to right ear in horizontal direction. 2. Contusion 15cm x 2cm on the right side of the lower part of abdomen 6cm below and lateral to amblicus in oblique direction. 3. Abraded contusion 7cm x 2cm on the post aspect of lower one third part of right forearm. 4. Abrasion 4cm x 1cm on the front of the left ankle joint." The case was committed to the court of sessions. Before the trial court, seven witnesses were produced wherein Chhote Lal P.W. 1, Tewari Singh Yadav P.W. 2 and Shiv Ram Singh P.W. 3, Sunil Kumari daughter of the complainant P.W. 4 are the witnesses of fact and P.W. 5 Radha Kishan is the witness of inquest, P.W. 6 Dr. C.B. Nimesh, who had conducted the postmortem of the dead body of the deceased and P.W. 7 Vasim Khan, SI of P.S. Usrahar, Investigating Officer of the case, were produced.;