S. C. Jain, J. - (1.) APPELLANTS Raj Bahadur, Hari Shanker, Prem Chand, Tulsi Ram, Gyan Chand, Har Govind and Laxmi Prasad have challenged the judgment and order passed by II Additional Sessions Judge, Orai at Jalaun dated 3.7.79 whereby they were found guilty of committing offences punishable under Section 147, I.P.C. and sentenced to undergo R.I. for 2 years each, under Section 148, I.P.C. and sentenced to undergo R.I. for 3 years each, under Section 307, I.P.C. read with Section 149, I.P.C. and to undergo for 7 years each: Appellant Hari Shanker was also found guilty for committing the murder of Mangal Singh individually under Section 302, I.P.C. and was convicted and sentenced to undergo imprisonment for life and appellants Raj Bahadur, Prem Chand, Tulsi Ram, Gyan Chand, Har Govind and Laxmi Prasad were found guilty under Section 302, read with Section 149, I.P.C. and were convicted and sentenced to imprisonment for life. All the sentences were ordered to run concurrently.
(2.) AS the facts and law involved in both these appeals are common so both these appeals are hereby disposed of by this single order. During the pendency of those appeals, appellants Hari Shanker, Har Govind and Gyan Chand died and as such appeal filed by them stand abated. Sri A.D. Giri, learned counsel for the appellants argued on behalf of the remaining four appellants namely Raj Bahadur, Prem Chand, Tulsi Ram and Laxmi Prasad and learned A.G.A. argued for the State.
(3.) THE facts giving rise to these appeals are as under : On 28.3.1975 it was Holi festival. At about 6 p.m. Gaya Prasad P.W. alongwith his brother Mangal Singh deceased was sitting on the Chabutara of his cattle shed near their residential house. At a distance of about 15 paces, children were playing Holi. At that time, the appellants Raj Bahadur, Prem Chand, Hari Shanker, Tulsi Ram, Laxmi Prasad, Har Govind and Cyan Chand who were armed with guns and country made pistol came there and formed an unlawful assembly with the common object to kill Gaya Prasad. THEy opened fire on Gaya Prasad and Mangal Singh but they escaped and ran towards their residential house for shelter. THEy were chased and while chasing caused injuries to Ram Saran, a boy who was playing near the house of Gaya Prasad and Mangal Singh. Gaya Prasad succeeded in entering his house but Mangal Singh while closing the main door of the house was shot dead by Hari Shanker accused by climbing on the heap of bricks. All these appellants were tried and convicted and sentenced under Sections 147, 148, 307/149 and 302/149, I.P.C. Learned counsel for the appellants challenged the judgment and order passed by Additional Sessions Judge on various counts. His first submission is that Hari Shanker the alleged assailant has since died and at the most his act of killing Mangal Singh was his individual act and the other appellants cannot be held responsible for the act of Hari Shanker. who allegedly killed Mangal Singh. According to him. the common object of killing Gaya Prasad came to an end when Hari Shanker allegedly climbed the heap of bricks and fired at Mangal Singh. The common object of the unlawful assembly was not to kill Mangal Singh, but according to the prosecution, the common object was that of killing Gaya Prasad.;