KUNDAN Singh, J. - (1.) This appeal is directed against the judgment and order, dated 6 -3 -1980 of Sri Harish Chandra Saxena, the then III Additional Session Judge, Saharanpur, in S. T. No. 97 of 1979, convicting the appellants under Section 302 read with Section 149, I. P. C. and sentencing each of them to imprisonment for life and also further convicting them under Section 323 read with Section 149, I. P. C. and awarding six months' R. I. to each of them. He also held Chandoo, Isam Singh, Bimal and Dal Singh appellants guilty of the charge punishable under Section 148, I. P. C. and accordingly he convicted and sentenced them under that count to a term of two years' R. I. , each, whereas Mehar appellant was further held guilty under Section 147, I. P. C. and was convicted there under and sentenced to one year's R. I. However, he directed the sentences of all the appellants passed under different counts to run concurrently.
(2.) BRIEFLY stated, the prosecution case, as set out in the first infor mation report, was that accused Makhan and Mangal and the informant Ram Kishan (PW 1) and Sohan deceased were residents of village Manik Mau, within police station Kotwali Dehat, district Saharanpur. Makhan accused had no issue. His maternal nephew (Bhanja) Mehar and Smt. Kela daughter of his sister -in -law (Sali) were residing with him. Mehar had developed illicit connection with Smt. Kela, which was not liked by the residents of Manik Mau. Sohan deceased, Phulloo and some other resi dents of the village made a complaint to Makhan about that illicit connec tion of Mehar and Smt. Kela and asked him to export them from the village as their unholy affair was polluting the environment of the entire village. On 22 - 10 -1978 Smt. Kela was sent to her in -laws' house. On the fateful day, i. e. 23 -10 -1978, at about 6. 00 p. m. Sohan was going towards fields in the company of Pitambar and Ram Kishan, Sala and cousin, respec tively, of the deceased. When they were passing through a lane in front of the house of Makhan, the latter was standing at the door of his house. At that juncture Makhan asked Sohan as to why he was defaming his daughter (Kela ). Thereupon Sohan reiterated that it was their own misdeed which was defaming them. Makhan started abusing Sohan for which Ram Kishan and Pitambar reprimanded Makhan. In the meantime the appellants and Mangal came out of the Bagar of Makhan, of them, Bimal and Isam Singh were armed with knives, Dal Singh with an axe, Chandoo with a spear and Mehar with a lathi. They also abused Sohan and his companions and exhorting to kill him they all pounced upon the deceased and his associate Ram Kishan and Pitambar and started inflicting injuries with their respec tive weapons. During assault informant Ram Kishan and Pitambar tracked behind and, therefore, they received only minor injuries. On the hue and cry raised by Sohan and his companions, Suba and Amarnath arrived on the spot. Bimal and Isam Singh caused kaifc injuries on the person of Sohan while Dal Singh and Mehar inflicted axe and lathi injuries, respectively. Chandoo also wielded his spear on Sohan but as the luck would have it, the blow fell on Dal Singh instead of Sohan for which Dal Singh reprimanded Chandoo. Mangal and Makhan grappled with the deceased and dragged him into the Bagar saying that they would kill him. In the Bagar also the deceased was beaten by the accused with their respec tive weapons and thereafter his body was' thrown on the kharanja in the lane, various persons had collected on the spot and after seeing them the accused persons had run away towards east of the village. Sohan died on the spot and his dead -body was lying there in the lane. Ram Kishan (PW 1) alongwith his brother Raghubir, Kurdi and Pooran went to police station for lodging the F. I. R. when they were going near the Cotton Mill, an employee of the Mill came across in the way to whom they narrated the entire episode and got a report of the incident scribed from him. That report was then sent to police station Kotwali Dehat, Saharanpur through Raghubir and Kurdi, who lodged it there at 8. 05 p. m. on the same day, i. e. , 23 -10 -1978. The investigation of the case was entrusted to Sub -Inspector Satish Chandra Sharma, who has been examined as PW 8 in this case. He reached the venue the same day in the company of R. D. Singh, Sub - Inspector and five constables. On his direction R. D. Singh (PW 6) prepared the inquest report and he himself recorded the statement of Ram Kishan (PW 1) and prepared the site plan of the spot, collected blood stained and unstained earth from the place of incident and then sent the deadbody to mortuary through three constables for post -mortem examina tion. In the night the Investigating Officer stayed in the village and next morning started further investigation at 6. 30 a. m. He recorded statements of Pitambar (PW 2), R. D. Singh, Sub -Inspector and of other persons and then returned to Saharanpur. There he met Dal Singh in the Hospital on 24 -10 -1978 but he could not arrest him and record his statement as he was lying unconscious. Thereafter witnesses Amarnath and others were inter rogated by him on 26 -10 -1978. However, the statements of Phulloo and others were taken down on 7 -12 -1978. The accused could not be arrested as they surrendered in court. Dr. Govind Swarup Gupta (PW 9) had medically examined Ram Kishan and Pitambar at 2. 50 p. m. and 3. 00 p. m. , respectively, on 24 -10 -1978. On the person of Ram Kishan he found one scabbed abrasion, one scabbed abraded contusion and one lacerated wound skin deep whereas on the person of Pitambar scabbed abraded traverse swelling on the dorsum of left hand was found. The autopsy on the deadbody of Sohan was conduct ed by Dr. Ramesh Chaturvedi (PW 4) at 4. 30 p. m. on 24 -10 -1978, who found two lacerated wounds, seven contusions, three incised punctured wounds, two incised wounds and two abrasions on his body. After com pleting remaining formalities the Investigating Officer submitted charge -sheet in court against the appellants, Makhan and Mangal accused.
(3.) THE prosecution examined 9 witnesses in all to prove its case. Out of them, Ram Kishan (PW 1 ). Pitambar (PW 2) and Amarnath (PW 3) were the witnessss of factum of the incident while others were formal in nature. The accused persons denied the prosecution version and pleaded not guilty to the charges - They stated that they have been falsely implicated due to enmity. Dal Singh in his statement recorded under Section 313, Cr. P. C. stated that Sohan and others were trafficking in the manufacture of illicit liquor besides doing service in the Cotton Mill. On the day of occurrence a constable came in the village and met him which was not relished by Sohan deceased. In the evening Sohan came to him with a spear in his hand. On seeing him Sohan started abusing him and when he pro tested to it, he gave him spear blows. His mother -in -law also had come on the spot and when she tried to intervene, she was also assaulted by Sohan. That villainy of Sohan offended the villagers who assaulted him. In retalia tion he also beat him. Accused Bimal stated that his father Mangal had appeared as a witness against the complainant party and for that reason he was also raped in the present case. Isam Singh accused stated that Sohan assaulted his father Dal Singh and, therefore, out of that enmity he was also nominated as an accused in the present crime. According to Chandoo accused, he was not present on the spot. The complainant side asked him to appear as a witness against the accused but he refused to oblige them and hence he was involved in the present case. Accused Mehar stated that Sohan and others were trading in the illicit liquor and they had a doubt that he was giving secret information of their activities to the police and on that account he was also falsely implicated in the present case.;