- (1.) This Criminal Appeal has been directed against the judgment and order dated 17.2.1984 passed by Special Judge, E.C. Act, Banda in Sessions Trial No. 33 of 1983 convicting and sentencing the appellant No.1( Sheo Mangal) under Section 449 for 5 years rigorous imprisonment, under Sections 302/34 IPC to undergo imprisonment for life, the appellant No.2 (Darbari) under Sections 302/34 IPC for life imprisonment and the appellant No.3 (Hari Prasad) was ordered to undergo 5 years rigorous imprisonment under section 449 IPC and under Section 302 IPC to undergo imprisonment for life. The learned Trial Court directed that the sentences awarded to appellant nos. 1 and 3 shall run concurrently.
(2.) The prosecution version in nutshell is that the first informant Dashrath s/o Chhotey Lal Kurmi, permanent resident of district Allahabad was residing in his Nanihal in village Nadin Kurmiyan, police Station Rajapur district Banda for about 35 years; that he was having some dispute in respect of land with Sheo Mangal son of Jiwa Rakhan who happens to be brother's son of his maternal grand father and civil litigation is said to have been pending between them in the Civil Court. It is also the prosecution version that due to this reason, Sheo Mangal was having grudge and enmity with the first informant, Dashrath. That in the night of 17.09.1982, he was sleeping in Tindwari of his house; his son Chhedi Lal was sleeping with his wife in a room while the elder son Jawahar Singh PW3 was sleeping in another room; that near Dashrath his brother-in-law Ram Lotan was also sleeping; that Chhedi Lal was lying ill for two days; a lantern was burning in his room and due to humidity, door of his room was opened; that about 2.00 PM in the night, Sheo Mangal son of Jiwrakhan having Lathi his sons Darbari and Shiv Mangal having Lathi and axe respectively entered into the room of Chhedi Lal. Sheo Mangal overpowered the wife of Chhedi Lal, Darbari remained standing outside the room and Hari Prasad began to strike on the neck of chhedi lal by axe; that wife of Chhedi Lal deceased cried on which, he, Ram Lotan and Jawahar rushed towards her room flashing torches and saw that Hari Prasad was assaulting Chhedi Lal by axe. They all raised alarm on which, all the accused persons shouted and on the point of axe threatened that if they will come forward then, they shall face the same consequence as that of Chhedi Lal ; that out of fear, they could not catch hold the accused persons; that after hearing noise and cry so many persons of the village rushed towards the place of occurrence and in the meantime, the accused persons ran away towards north. Chhedi Lal succumbed to the injuries sustained. On the written information given by Dashrath, F.I.R. at Case Crime No.87 of 1982 under Section 302 IPC against Sheo Mangal, Darbari and Hari Prasad was registered by Constable-Ram Pyare. Entry in the GD was also made by him. Investigation of the matter was entrusted to Amar deo Singh Yadav (PW-5) who visited the spot, took blood stained baniyan of Chhedi Lal deceased. He also collected blood stained and plain earth,blood stained piece of beam (kari) of roof from the spot. Torches from the possession of Dashrath and Jawahar Singh were also taken and thereafter, given in their custody with a direction to produce the same before the Court as and when required. He also conducted inquest on the body of deceased and after sealing it , sent the same to mortuary for post mortem through Constable- Radhey Lal(PW-4) along with necessary papers. He sent the blood stained articles for chemical analysis. The report submitted by the Chemical Analyst is available on record in which, out of Article no.2 to 5, 7 and 8, there was human blood on articles no. 2 to 4 and 7 the blood was of 'B' group. However, on article-1- earth and beam of roof, blood could not be identified due to disintegration. The Investigating Officer also inspected the spot and prepared site plan. He also recorded statements of witnesses and after concluding the investigation, submitted charge sheet against the accused persons. Learned Chief Judicial Magistrate, Banda committed the case to the Court of Sessions where charges under Sections 449/302 IPC were framed. The accused persons denied the charges and claimed to be tried.
(3.) In order to substantiate charges against the accused persons as many as six witnesses have been examined on behalf of the prosecution. P.W.1-Dashrath is the first informant and father of deceased,Chhedi Lal. He has also proved the written tahrir. P.W.2 Smt. Kusuma is the wife of deceased Chhedi Lal. P.W.3 Jawahar Singh is the brother of deceased and scribe of written tehrir. All these three witnesses are the eye witnesses of the occurrence. P.W.4-Constable Radhey Shyam has been examined to prove the fact that he took the dead body for post mortem examination. P.W.5 Amardeo Singh Yadav, is the Investigating Officer of the case. He has proved the chick F.I.R, G. D entries, inquest report and the charge sheet submitted against the appellants. He also proved fard etc. prepared on the place of occurrence and site plan also. P.W.6 Dr. M.K.Joshi had conducted post mortem examination on the body of deceased. Following injuries were found by him on the body of deceased :- 1. Incised would size 8 cm x 2,1/2 cm x bone deep with tail size 6 cm x 0.20 cm on left side of face to neck just outer angle of mouth. Transversely placed tailing towards downwards with left underlying bone. 2. Incised wound size 4 cm x 1,1/2 cm x bone deep cut on chin. Transversely placed underlying bone, Multiple cut. 3. Incised wound 7 cm x 2 cm x bone deep on anterio lateral aspect of left side of neck on middle 3 cm below the injury no.2. Transversely placed tailing towards left underlying all vessels, mussels and bone out. 4. Incised wound size 6 cm x ½ cm x muscle deep on left side of neck 1 cm below the injury no.3. Transversely placed tailing towards left. 5. Incised wound size 7,1/2cm x 1,1/2 cm bone deep on anterio lateral aspect of left side of neck 1 cm below the injury no.4. Transversely placed tailing towards left underlying vessels carotid and superior vena-cava cut. Muscle and bone out. 6. Incised wound size 1 cm x 1 cm bone deep on top of left shoulder joint. 7. Abraded contusion size 4 cm x 2 cm on lateral aspect of left shoulder joint. 8. Incised wound size 3 cm x 1 cm x muscle deep on back of right hand. 6 cm below the wrist joint obliquely placed.;