S.D.KHARE, J. - (1.) THESE are two connected appeals arising out of an order dated 22nd January, 1966, passed by the learned Sessions Judge, Gorakhpur, convicting all the nineteen appellants of the two connected appeals for the double murder of Somti and Bhaddu, for making an attempt to cause the deaths of four persons, namely, Prashad, Sm. Katwari, Swaminatha and Sant Kumar, and for rioting. Shailesh Kumar alias Moti Lal, who was armed with a gun and was responsible for causing the deaths of Somti and Bhaddu, was convicted under Section 302, Penal Code, and sentenced to death. The remaining eighteen appellants were convicted under Section 302 read with Section 149, Penal Code for those offences and sentenced to imprisonment for life. All the nineteen appellants were convicted under Section 307 read with Section 149, Penal Code, and each sentenced to seven years' rigorous imprisonment. For the offence of rioting the appellants in Criminal Appeal No. 193 of 1966, being armed with deadly weapons such as gun and spears, were sentenced to two years' rigorous imprisonment each under Section 148, Penal Code, while the nine appellants in Criminal Appeal No. 164 of 1966, being armed with lathis only, were convicted under Section 147, Penal Code and each sentenced to one and a half year's rigorous imprisonment. The sentences were ordered to run concurrently.
(2.) THERE is also before us the usual reference by the learned Sessions Judge for confirmation of the death sentence passed on Shailesh Kumar alias Moti Lal (appellant).
(3.) THE two persons who lost their lives and also those who received injuries belonged to one and the same family, as will appear from the following : - The descendants of Bholai Ahir resided in village Bhitaha, within police circle Bansgaon, district Gorakhpur, and relations between them and certain Brahmin families of the village and also of the adjoining village Bhasma were very much strained. About ten or eleven years ago, a criminal case was started against Jitan Tewari, Chinni and Dukharan along with others for having caused hurt to the mother of Swaminath (P. W. 1). Again about sixteen months before the occurrence there was a free fight between Jitan Tewari, Chinni, Bishambhar, Gunjeshari, Shambhu (appellants) and certain other persons on the one hand and Bhaddu, Prashad and certain other persons on the other. The accused persons in both the cross -cases were convicted and sentenced. In the year 1964 proceedings under Section 107, Criminal Procedure Code were started against Swaminath, Bisram, Somti, Prashad and others as one party and Jitan Tewari, Sheonat, Chinni, Gunjeshari, Neur (appellants) and certain others as the other party, and members of both the parties were bound down to maintain peace for a period of one year. Again, Jitan Pande started a case under Section 379, Penal Code, against Bhaddu, Dwarka (P. W. 6) and Bhonu (P. W. 9) on the allegation that they had stealthily removed his crop. Shambhu (appellant) had also about a year ago started a criminal case against Swaminath, Prashad, Bhaddu and Sant Kumar. However, both these cases had ended in acquittal. A case under Section 307, Penal Code was pending against Gunjeshari, Shambhu, Neur (appellants) and others for attempting to cause the death of one Kalika Brahmin of their village and Gunjeshari and other appellants were under the impression that Bhaddu and others were supporting Kalika as against them. The prosecution case is that it was in this background that on 19th march, 1965, at about 8 a.m. two of the appellants, namely, Gunjeshari and Abhimannu went to the house of Kalika and started abusing him. They were also joined by Jitan Tewari, Dukharan, Sheonath, Chinni, Bishambhar, and Shambhu (appellants). Kalika entered his house and closed the door from inside. Gunjeshari and others started throwing brick -bats inside the house of Kalika and continued to shower abuses. Bhaddu (deceased), Sant Kumar, Somti, Dwarka and Ram Manohar arrived there and asked Gunjeshari and others not to indulge in such lawless activities. They left the house of Kalika at that time after threatening Swaminath (P. W. 1) and others that they had been persistently coming to the aid of Kalika and for that they would be taught a lesson. About one hour later, i.e., at about 9 a.m., the same morning when Bhaddu, Somti, Prashad, Swaminath, Sant Kumar and Sm. Katwari were busy in some agricultural operations in their threshing floor, all the nineteen appellants arrived there shouting that they must be killed and their crops in the threshing floor burnt. Shailesh Kumar was armed with a gun, while the remaining nine appellants of Criminal Appeal No. 193 of 1966 had spears with them, whereas all the nine appellants of Criminal Appeal No. 164 of 1966 held lathis. They assaulted Bhaddu and others, who used their lathis in private defence of person and property. While the lathi fight was going on, Shailesh Kumar alias Moti Lal (appellant) fired his gun four times after aiming at Somti and others with the result that Somti and Bhaddu fell down on the ground and expired soon thereafter, while Prashad, Sm. Katwari and Swaminath also received gunshot injuries. Sant Kumar (P. W. 4) had received a spear injury only.;