M.C.JAIN,J. - (1.) THESE two Government appeals are connected with each other having arisen from the judgment dated 22 -12 -1980 passed by IVth Additional Sessions Judge, Farrukhabad in S.T. Nos. 324 of 1979 and 33 of 1980 which were tried together. The respondent in Government Appeal No. 1262 of 1981 is Har Swaroop Saraswat whereas respondents in Government Appeal No. 1265 of 1981 are Hirday, Deepak, Deputy alias Gopal Manohar, Om Prakash, Ram Autar and Balram. All of them came to be acquitted inter alia for rioting and murder by the impugned judgment. There was another accused Ashok (besides the above named seven) whose case had been separated. The accused -respondent Deputy alias Gopal Manohar died during the pendency of the appeal and the same abated in respect of him under order dated 17 -8 -2005. We propose to decide both the appeals together.
(2.) THE relevant facts as emerging from the F.I.R. and the evidence adduced in the Court may be set forth for appreciation of subsequent discussion. The incident occurred on 9 -3 -1979 at about 8.30 p.m. on Bank Road in Mohalla Mahavirganj, Police Station Kotwali, District Farrukhabad and the written F.I.R. was lodged by Kali Charan PW 1 (father of deceased Chandra Prakash alias Chandru) the same night at 9.15 p.m. He claimed himself to be an eye -witness. The deceased Chandra Prakash alias Chandru was elected as manager of Pt. Durga Prasad Badri Prasad College about 2 -2 1/2 months before the incident. The accused Har Swaroop Saraswat who was a member of erstwhile management committee of the college did not like it. He had offered threats to the deceased to put an end to his managership on the point of gun. The proceedings under Sections 107/116 of Cr. P.C. had also been initiated by the police of P.S. Kotwali on the basis of the said threat. The accused Ram Autar and Balram were teacher and peon respectively in the said College. Earlier they were the henchmen of Har Swaroop Saraswat but later on pretended to be friendly with Chandra Prakash alias Chandru, deceased. On the eventful day, these two took away Chandra Prakash alias Chandru from his house at about 7.00 p.m. to the house of the Principal Ram Dulare Pathak on the pretext of urgent work to be conducted. When Chandra Prakash did not return even after an hour, Kali Charan PW 1 and his another son Satya Prakash PW 2 (who was also examined as eye -witness) went to the house of the Principal to fetch Chandra Prakash. Kali Charan had a sweetmeat shop and presence of Chandra Prakash was needed to settle the account of a milkman. When these two witnesses were returning from the house of the Principal with the deceased at about 8.30 p.m., the accused -persons appeared at the turn of Bank Road; Har Swaroop Saraswat cried aloud mouthing abuses for Chandra Prakash that he had come. All of them proceeded to encircle Chandra Prakash. Har Swaroop Saraswat was armed with gun whereas Hirday, Deepak and Deputy alias Gopal Manohar were armed with country made pistols. Om Prakash had a Pharsa and Ashok was armed with a knife. Kali Charan and Satya Prakash raised shouts attracting Bhanu Prakash (Kali Charan's son) and few others, namely, Girish Chandra, Suresh and Deen Dayal. Ashok knifed Chandra Prakash from the back side and Deepak opened shot on him from behind. Chandra Prakash fell down whereupon Har Swaroop Saraswat opened shot in his abdomen. Om Prakash started assaulting Chandra Prakash with Pharsa. Kali Charan, Satya Prakash and other witnesses made an attempt to proceed ahead to save Chandra Prakash. But Hirday and Deputy alias Gopal Manohar accused opened fire towards them threatening of their lives. After committing the crime, the culprits made their escape good. On the lodging of the F.I.R. by Kali Charan, a case was registered and investigation followed as usual at the hands A.S.I. V.C. Basdeo PW 10. The dead -body after being sealed was sent for post -mortem which was conducted by Dr. Subhash Chandra Goel PW 7 on 10 -3 -1979 at 3.30 p.m. The deceased was aged about 32 years and about one day had passed since he died. In all 25 ante -mortem injuries were found on his person. Out of them, 19 were incised wounds on different parts of his body. There was 1 stab wound in abdomen. There were 3 gun shot wounds of entry and 2 of exit. All the three gunshot wounds of entry were on abdomen. The cause of death was shock and haemorrhage as a result of ante -mortem injuries.
(3.) THE defence was of denial and false implication.;