M.C.JAIN, J. - (1.) BOTH the appeals arise out of the judgment and order dated 1 -8 -1981 passed by IV Additional Sessions Judge, Kanpur in Sessions Trial No. 443 of 1978. The accused Harish Chandra and Daya Shanker have been acquitted. As such, the State has preferred Government Appeal No. 2766 of 1981 there against. The appellants of Criminal Appeal No. 1736 of 1981, namely, Balwant, Raja Ram son of Din Dayal, Mool Chand and Raja son of Gajadhar as also one Arun were convicted under Section 302 read with Section 149 IPC. Raja Ram was further convicted under Section 148 IPC and the rest under Section 147 IPC. Arun was found under 16 years of age within the meaning of U.P. Children Act, 1951. The benefit of the said Act was afforded to him and it was held that he was not liable to be sentenced. He has released on probation of good conduct. The sentence of life imprisonment under Section 302 read with Section 149 IPC was passed against four appellants of Criminal Appeal No. 1736 of 1981. Raja Ram was further sentenced to undergo 1 -1/2 years' rigorous imprisonment on the charge under Section 148 IPC. Balwant, Mool Chand and Raja were sentenced to one year's rigorous imprisonment under Section 147 IPC. All the sentences were directed to run concurrently. Balwant, Raja Ram, Mool Chand and Raja have preferred Criminal Appeal No. 1736 of 1981 against their conviction and sentences. Arun to whom the benefit of U.P. Children Act, 1951 was afforded did not prefer any appeal. Since both the appeals are connected with each other, they are being decided by this common judgment.
(2.) WE have heard Miss N.A. Moonis, learned AGA from the side of State and Sri Viresh Mishra, learned Counsel for the accused respondents Harish Chandra and Daya Shankar. In Criminal Appeal, no one turned up to argue out the appeal for the accused appellants though they are represented on record by S/S S.S. Tewari, K.K. Srivastava and R.S. Shukla, Advocates. We, therefore, propose to decide this appeal also on merits as provided by the apex Court in the case of Bani Singh v. State of U.P., AIR 1996 SC page 2439. In this case, one Kalika Singh was murdered. The incident occurred on 16 -6 -1978 at about 10.30 p.m. in village Nahili, P.S. Mangalpur, District Kanpur and the report was lodged by an eye -witnesses Shyam Veer Singh PW 1 on 17 -6 -1978 at 6.30 a.m. He was the nephew of the deceased Kalika Singh. The prosecution case, in essential particulars, was that about 11 years before the present incident, Nanha Singh father of the informant Shyam Veer Singh was murdered by Daya Shankar, Balwant, Harish Chandra, Amar Nath and some other persons (not accused in this case). They were, however, acquitted. Ever since then there became enmity between Amar Nath (one of the accused of that case) and the informant Shyam Veer Singh. The present murder of Kalika Singh was allegedly committed owing to that enmity. In the fateful night, the informant Shyam Veer Singh PW 1 and deceased Kalika Singh had gone to Jhinjhak for receiving Ranvir Singh -brother of the informant who was due to arrive by train from Kanpur. Ranvir Singh, however, did not come by that train. The informant and deceased Kalika Singh, were, therefore, returning back to their village Nahili at about 10.30 p.m. Both of them reached near their village and near canal Kharja, eight persons including the seven accused and one Amar Nath emerged out from their hiding. Amar Nath gave a call and all the eight assailants started assaulting Kalika Singh. Kalika Singh, on being surrounded by the assailants and finding no way out, fired two shots from his gun for his safety. As a result, Raja Ram and Amar Nath were injured. The assailants, however, snatched the gun of Kalika Singh and killed him at the spot. Amar Nath and accused Raja Ram were armed with Kantas. Accused Harish Chandra was armed with a Ballam while Daya Shankar was armed with Barchhi. The remaining four accused were armed with lathis. Shyam Veer Singh raised hue and cry as soon as the assault began, attracting the witnesses Chhote, Bashir, Mohd. Shafi PW 2, Ram Lal PW 3 and Jai Ram of village Nahili who witnessed the incident. After killing Kalika Singh, the accused escaped alongwith his gun. The dead -body of Kalika Singh was taken to his house by the informant and the witnesses. In the morning, Shyam Veer Singh went to the Police Station and submitted written report Ext. Ka -1 at 6.30 a.m. Clerk Constable Narendra Narain PW 5, who received written report, prepared check report Ext. Ka -6 and registered a case in the GD. The case was investigated by SI B.D. Singh PW 7, the then SO of P.S. Mangalpur. He recorded the statements of informant Shyam Veer Singh and other witnesses. Amar Nath and accused Raja Ram were arrested by him. The site was inspected by him with the preparation of site plan. The blood stained and simple earth were collected therefrom. He took in his possession an empty cartridge and piece of another empty cartridge as also tikli (wad) from the spot. A Nagra shoe was found by him at the spot which was taken in possession after preparing its fard. He picked up blood stained blade of Ballam from the spot and prepared its fard. The torches of the witnesses were inspected with the preparation of memos. He also took in his possession blood stained gamchha lying by the side of the dead -body of Kalika Singh and prepared fard therefor. He also searched the house of Amar Nath and found the second piece of Nagra shoe and prepared its fard.
(3.) THE inquest was conducted by SI Girja Nand Dubey PW 4 on 17 - 6 -1978 under the supervision of SO B.D. Singh. Other relevant papers were also prepared. The dead -body was ultimately sent for post -mortem which was conducted by Dr. S.P. Dubey PW 8 on 18 -6 -1978 at 2.30 p.m. He (deceased) was aged about 55 years of age and about 1 -1/2 day had passed since he died. The following ante -mortem injuries were found on his person: (1) Lacerated wound 8 cm x 4 cm x skull bone right parietal region 5 cm above right ear with fracture of bones underneath. (2) Contusion 9 cm x 4 cm on right temporal parietal just above and front of fight ear with fracture underneath. (3) Lacerated wound 3 cm x 1 cm x muscle on right ear, irregularly. (4) Lacerated wound 3 cm x 2 cm x muscle behind right ear. (5) Contusion 5 cm x 3 cm in left temporal region. (6) Bilateral black eye. (7) Bleeding from nostrils and right ear. (8) Incised wound 4 cm x 1 1/2 cm x muscle with fracture of bones underneath. (9) Incised wound 4 cm x 1 cm x muscle on right hand. (10) Lacerated wound 2 -1/2 cm x 1 cm x muscle and right forearm lower part with fracture. (11) Multiple contusions 6 cm x 3 cm, 7 cm x 4 cm, 4 cm x 2 cm on dorsum and inner part of right forearm. (12) Torn. (13) Torn. (14) Multiple abraded contusions 4 cm x 2 cm, 5 cm x 3 cm, 2 cm x 1 cm, 6 cm x 2 cm on back of right shoulder. (15) Contusion 12 cm x 8 cm on the outer part of right shoulder region. (16) Incised wound 2 cm x 1 cm x muscle on left shoulder region. ;