Pratyush Kumar, J. - (1.) THE instant criminal appeal, filed under Section 374(2) Cr.P.C. by the accused -appellants, is directed against the judgment and order dated 18.8.1981 passed by Sri V.C. Jain, Sessions Judge, Unnao in Sessions Trial No. 541 of 1979 (State v. Motilal and others) whereby they were convicted and sentenced as under: - "1) Under Section 302 read with Section 34 I.P.C. to imprisonment for life, and 2) Under Section 201 I.P.C. to three years' R.I."
(2.) IN this appeal prosecution case in brief is that on 8th September, 1979, at 8.10 p.m., Ram Bali gave a written report at Police Station Bangarmau stating therein that accused Mohan Lal and his sons Ram Avtar and Motilal were convicted and sentenced to 4 years R.I. in case under Section 307 I.P.C. involving attempted murder of the first informant. Before the occurrence, five and six days ago, after their said conviction they were released on bail. On 8th September, 1979 when the first informant with his brother Chotelal and niece Tarawati were bringing home fodder from their 'Lilaha wale Khet' and Chhotelal was carrying bundle of 'Makai' and 'Chari' (maize), at about 5.00 p.m. when they reached near the field of Ram Vilas on the 'Mendha' (boundary mark) cultivated by Mohanlal, Moti Lal armed with SBBL gun, Ram Avtar and Sri Krishna armed with country made pistols suddenly came out of their field of 'Corn'. Moti Lal fired from his gun on Chhotelal, who sustained gun shot injury and fell into an adjacent field of Ghasitey. The first informant and his niece raised hue and cry, on that Ram Avtar and Sri Krishna also fired on, and lifted, Chhotelal and took him into the field of 'Corn' raised by Mohanlal there they severed the head of Chhotelal with the help of 'Khurpa' snatched from the hand of Chhotelal. Meantime, Mahadev, Bhadruddin and Hemnath came to the place of occurrence and warned the accused persons, who went away to the eastern side. Due to fear of fire arms, they could not be chased. After leaving the dead body of Chhotelal with his brothers Sri Krishna and Kalicharan, he had come to report the occurrence. On this written report, Case Crime No. 398 of 1979 under Sections 302, 201 I.P.C. was registered at Police Station Bagarmau. Chik F.I.R. was scribed. Requisite entry was made in the general diary and investigation was started. All the necessary and formal steps in the investigation were taken and after completion of investigation against all the three accused, chargesheet was submitted. The magistrate took cognizance of the offence and after completing the mandatory requirements committed the case to the Court of Session. In the Court of Session respondents were charged under Sections 302 and 201 I.P.C. who pleaded not guilty and claimed to be tried.
(3.) BESIDES documentary evidence on behalf of the prosecution, five witnesses namely Rambali, P.W.1 first informant, Mahadev, P.W.2 eye -witness, Dr. S.K. Khanna, P.W. -3 who conducted the postmortem, Iswardeen, P.W. -4 Head Constable, who scribed the chik F.I.R and Kamla Prasad Pandey, P.W. -5, investigating officer were examined. After close of prosecution evidence, statements of the accused under section 313 Cr.P.C. were recorded wherein they denied the eye -witness account. The court summoned Krishna Kumar and examined him as C.W. -1 who was Assistant Medico Legal Expert of the State. Thereafter, further statements of the accused persons were recorded under Section 313 Cr.P.C. in reference to deposition of Krishna Kumar, P.W. -1 the accused did not say anything about his testimony. After conclusion of the trial and hearing the arguments of both the parties, the learned trial Judge had convicted all the three accused on both the charges framed under Section 302 read with Sections 34 and 201 I.P.C. and sentenced them accordingly.;