M.C.Jain, J. - (1.) The accused appellants, namely, Dukhi, Ram Achal, Ram Kumar and Jagdamba have preferred this appeal against the judgment and order dated 17.2.1982 passed by the Sessions Judge, Basti in Sessions Trial No. 133 of 1981, convicting them under Sections 302 read with Section 34 I.P.C. and 323 read with Section 34 I.P.C. Life imprisonment has been awarded to each of them for the former offence and one year's and 'six months' rigorous imprisonment for the latter on two counts. All the sentences were ordered to run concurrently. The accused appellants Dukhi and Ram Achal are real brothers being sons of Bire. Accused appellant No. 3--Ram Kumar is the son of Dukhi. During the pendency of the appeal, the appellant Ram Achal died and the same abated on his behalf under order dated 15.7.2005.
(2.) A brief reference to the facts of the case would suffice. The incident took place on 17.2.1981 at about 2 PM in village Gaura of P.S. Walterganj, District Basti and the F.I.R. was lodged the same day at 6.45 PM. by an eyewitness Ram Tilak PW 1. The deceased was Ramdeo Yadav and Jagmohan and Rampher PW 3 sustained simple injuries in the incident. The informant Ram Tilak, the deceased Ramdeo Yadav and the accused Dukhi, Ram Achal and Ram Kumar were residents of village Gaura where the incident occurred. Fourth accused appellant Jagdamba was resident of village Gangapur. He often used to visit village Gaura and was, therefore, known to witnesses. The deceased Ramdeo Yadav was driving bullocks at the Kolhu of Surya Mani Tripathi PW 5 as his own sugarcane was being crushed there. Rampher was inserting sugarcane sticks into the Kolhu (crusher), Khellu, Hari Ram, Ram Tilak, Jagmohan and Parmanand were also present there. Jagmohan was the father of Ramdeo Yadav deceased while Parmanand was his son.
(3.) Accused Ram Achal and Dukhi came from the east, while the accused Jagdamba and Ram Kumar appeared there from the western side. Ram Achal and Dukhi were armed with lathis whereas Jagdamba and Ram Kumar were aimed with guns. As soon as the four accused reached near the Kolhu, Ram Achal and Dukhi assaulted Ramdeo Yadav with lathis. He fell down at the spot and when he tried to get up, the accused Jagdamba and Ram Kumar fired on him from their guns. As a result, Ramdeo Yadav died at the spot. When accused Dukhi and Ram Achal were assaulting Ramdeo Yadav, the witnesses Ram Pher and Jagmohan rushed to his rescue but Ram Achal and Ram Kumar both assaulted them with Lathi and butt-end of the gun respectively, Rampher and Jagmohan both received injuries.;