- (1.) The instant appeal is arising out of judgment and order dated 21.8.1982 passed by the IV Additional Sessions udge, Fatehpur in S.T. No. 333 of 1980 whereby convicting the appellants under Section 333 I.P.C. for six years rigorous imprisonment. Further convicting the appellant no.1 Deo Nath under Section 394 I.P.C. with rigorous imprisonment of three years. All the sentences were directed to run concurrently. During the pendency of appeal the appellant no.1 Deo Nath died and as such the appeal stood abated against him by order dated 5.11.2012.
(2.) Heard Sri Harsh Kumar Srivastava, learned counsel appearing on behalf of the surviving appellants, namely, Deo Raj and Udai Bhan and Sri R.D. Yadav, the learned A.G.A. on behalf of the State and perused the record.
(3.) The prosecution case in short conspectus is that the first information report was lodged by Constable Ram Abhilash (P.W. 8) that when he along with Constable Rajbali (P.W. 3) were returning after patrolling on 11.9.1977, as they had visited the villages Bara, Malukbari and Kachhra in search of one accused Swayamber but he was not traceable and reached near the 'Nala' lode at about 6 P.M. in the village Bhavnapur, he (the complainant) had alighted from cycle for urination but the Constable Rajbali proceeded and reached at the lode on his bicycle the accused persons, namely Deo Nath (since deceased) Dev Raj both sons of Beni Kevat, Jhallar (who died during trial) who is also son of Beni Kevat and one Udai Bhan son of Deo Nath having lathi with iron ring affixed at its end appeared and the accused/appellants Deo Nath (since deceased) exhorted the other accused persons to kill Rajbali Singh as he had got arrested him in a case under Section 25 Arms Act and was sent to jail. The accused Jhallar firstly assaulted with his lathi to Rajbali Singh who after having sustained injury fell near the Mahua tree. On this the complainant cried for help and on his scream Shiv Bali (P.W.1), Ramdeo and Bhola (P.W. 2) arrived there from nearby field and had witnessed the incident. Ram Abhilash (P.W. 8) was threatened that he will meet the same fate. The accused persons had also tried to beat the complainant when he reached to save his companion Constable Rajbali Singh. Thereafter while escaping from the spot Deo Nath (since deceased) had snatched the wrist watch of Rajbali Singh. It is further mentioned in the first information report that as Rajbali Singh had sustained injury over his head and left leg was fractured, hence he was taken on a cot to the house of Jagannath Kevat who is father of the eye witness Bhola (P. W. 2). There from he was taken on a cot to the Primary Health Centre Vijaypur. He was medically examined at 2 A.M. on 13.9.1977 thereafter he was referred to District Hospital Fatehpur. Dr. V.P. Singh (P.W. 4) examined the injuries of Constable Rajbali Singh, which are as follows;;