- (1.) The instant appeal has been preferred on behalf of the quadruple appellants (i) Ram Nath, (ii) Bhugga (iii) Chunbadiya and (iv) Heera Lal against the judgment and order dated 30.9.1982 passed by the learned Sessions Judge, Banda in S.T. No. 207 of 1982 (State vs. Heera Lal and others) arising out of case Crime No. 108 of 1981, police station Rajapur, district Banda whereby convicting and sentencing the appellants for the offence under Section 302/34 I.P.C. for life imprisonment, under Section 324/34 I.P.C. for two years rigorous imprisonment and under Section 394 I.P.C. for five years rigorous imprisonment. All the sentences were directed to run concurrently. Three of the above named appellants, namely, Ram Nath, Heera Lal and Chunbadiya have died during the pendency of the appeal and as such the appeal stood abated against them vide order dated 22.10.2009 and 20.11.2012 respectively. The appellant no. 2 Bhugga is now before us on whose behalf the learned counsel for the appellants is mooting his arguments.
(2.) The genesis of the prosecution case is narrated in the first information report lodged by Ram Sajeevan on 19.12.1981 at 5.40 A. M. with regard to an incident took place in the intervening night of 18/19.12.1981 between 11 to 11.30 P.M. at village Atarsui, police station Rajapur, district Banda. It is alleged that in the night in question the complainant Ram Sajeevan, his brother Ram Pratap, Smt. Savitri wife of Ram Pratap and one Devi Prasad son of Sharda Prasad of his village were sleeping in the Chaupal of their house. There was light of dibbi (country made lamp) as usual and in the night between 11-11.30 P.M. hearing the rattling sound coming from the roof of the house they woke up. They noticed light inside the Chaupal. They saw that miscreants had opened the door with an axe. The complainant flashed his torch and in that light noticed that Ram Nath Arkhu, Chunbadiya and Bhugga Arakh sons of Maha Dev and one Heera Lal son of Babu Lal all resident of his village armed with Farsa, lathi, Kulhari, Barchi barged into the Chaupal and started assaulting the complainant and his brother Ram Pratap with their respective weapons. In the meanwhile Devi Prasad took up the axe and launched a counter attack on the assailants. They entered into Barautha of the Chaupal where assault took place and all the persons continued to assault Devi Prasad. Amongst the assailants Ram Nath carried farsa, Chunbadiya had an axe and also carried his gun, Bhugga equipped with a barchhi (now the surviving appellant) while Heera Lal carried a lathi. After making murderous assault the miscreants took away utensils and other articles from the house of the complainant and it was mentioned that the list of items taken away by them will be given later on. Ram Nath and Chunbadiya were nurturing animus and grudge on account of old enmity with Devi Prasad as Devi Prasad was earlier in the party of the accused persons but for the last three months he had come along with the complainant and used to sleep at his Chaupal out of fear of the accused persons. On account of the injuries suffered by Devi Prasad he lost his life. Ram Sajeevan as also his brother Ram Pratap had also sustained injuries of barchi and Pharsa. On hue and cry various persons of the locality arrived there. All the miscreants escaped from the spot unleashing reign of terror by firing in the air. The complainant lodged a written report scribed by Suresh Prasad Tiwari on 19.12.1981 at 5.45 A.M., which was registered as case Crime No. 108 of 1981, under Sections 394 and 302 I.P.C. at police station Rajapur, District Banda and the same was entered in the general diary by constable Deo Narain Moharrir (P.W.3).
(3.) On the basis of the first information report lodged against the named accused persons as stated above, the criminal law was set in motion and investigation was entrusted to the investigating officer Indra Pal Singh S.O. (P.W.6) who swung into action. He recorded the statement of Shiv Sagar, Shiv Autar and the complainant Ram Sajeevan (P. W. 1). Ram Sajeevan was forwarded with chitti Majroobi for medical examination to S.A.D. Rajapur who was brought by CP 194 Khalil Ahmad and was medically examined on 19.12.1981 at about 8.15 A.M. by Dr. R.K. Gupta and following injuries were found on his person; (i) One incised wound on the frontal bone left to mid line 9 cm. above the root of nose 2.5 cm. x 2.5 cm. x deep to bone, margins are cut clearly, tail towards nose. (ii) Echymosis lower to right eye 1.5 cm. x 0.5 cm. (iii) Complain of pain right side of shoulder joint. (iv) One abrasion middle right forearm inner side 2.5 cm. x 0.5 cm. (v) One incised wound on the right palmer side of right hand 6 cm X 1 cm x deep to muscle, margin clearly cut, tail towards index finger. (vi) One incised wound on the palmer side of right hand proximal to the right index finger 2.5 cm x 1 cm x deep to muscle, tail towards outer side, clotted blood around the wound present. (vii) One abrasion inner side of left elbow joint 1.5 cm x 0.5 cm. (viii) One incised wound on the palmer side of left hand 4.5 cm x 1 cm x deep to bone, margins clearly out, tail towards index finger, and wound on the index finger and proximal to it. (ix) One abrasion on the back just below the neck on the mid line 2 cm x 0.5 cm. (x) One abrasion on the middle and front of right leg 2 cm x 1 cm. (xi) One abrasion on the lateral side of right malleolo.;