- (1.) HEARD Shri Vivek Bhatt, learned counsel appearing on behalf of appellant nos.1, 2 and 4, Shri Awanish Kumar Bhatt, learned counsel appearing on behalf of appellant nos.3, 5 and 6, Sri Sharad Dixit learned AGA for the State respondent and Shri Sunil Kumar Singh, learned counsel for the informant.
(2.) THIS criminal appeal has been filed by the appellants - Alwar, Badam, Haripal, Morpal, Hari Singh and Rama Deen, challenging the judgment and order dated 15.9.2005 passed in Sessions Trial No.235 of 2004 by the learned Additional Sessions Judge, Court No.2, Hardoi convicting the appellants and sentencing them to undergo 8 years RI under Section 304 (2) read with Section 149 IPC, and further convicting the appellants - Alwar, Morpal, Hari Pal and Ramadeen and sentencing them to undergo 3 years RI under Section 148 IPC and convicting the appellants - Badam and Hari Singh and sentencing them for 2 years RI under Section 147 IPC.
(3.) THE prosecution case, in brief, are that FIR was lodged by Smt. Kiran on 11.11.2003, at about 11:25 AM, alleging that Morpal was cutting a branch of Neem tree standing on the Gram Sabha land and her husband Satish forbade him from doing so, and thereafter, he went away beside the river Manjhiri to water the field. Due to this dispute on 11.11.2003, at about 10 AM, Alwar having gun in his hand, Morpal having country made pistol, Badam having lathi, Haripal having country made pistol, Hari Singh having lathi and Ramadeen having gun, went to her field started abusing and with the intention to kill him starting beating by lathi. At the time of incidence, Chandrapal, Ram Vilas, Srinivas saw the incidence and exhorted the assilants. Then, the assailants threatening to kill fled away towards east. On this, a case under Sections 147, 148, 149, 307, 323, 504, 506 IPC was registered as case crime no.130 of 2003. Investigation was handed over to Shri Shyam Bahadur Yadav, Incharge Police Station. The Investigating Officer, after investigation, sent the injured for treatment. It was not possible to record the statement of the injured, as his condition deteriorated and he was unconscious. The statement of the informant was recorded. Evidence was collected, place of occurrence was inspected and plain and blood stained earth was taken to prepare fard. On 11.11.2003 itself, brother of the deceased Srinivas Tiwari informed the police station that his brother died at about 12:35 hours while he was being taken to CHC for treatment. On this information of Srinivas regarding death of injured, case was converted under Section 302 IPC. Thereafter, the Investigating Offier went to CHC, Harpalpur prepared panchana of the dead body, and it was sent for post mortem. The statement of the witnesses was recorded. The statement of the accused persons were recorded after their arrest. On 13.11.2003, on the pointing out of Hari Singh and Badam Singh two lathis were recovered and fard was prepared. Charge sheet under Sections 147, 148, 149, 307, 323, 504, 506 IPC was submitted against the accused persons. The case was submitted for trial.;