- (1.) N. L. Ganguly, J. This Criminal Appeal by Chandra Pal and 5 others was filed against the judgment and order dated 21-4- 1980 passed by the IIIrd Addl. Sessions Judge, Sri H. P. Pathak, Aligarh, convicting all the appellants under Sections 148, 302 read with Section 149, I. P. C. and 307 read with Section 149, I. P. C. and sentencing two years R. I. , imprisonment for life and seven years, respectively. All the sentences were directed to run concurrently.
(2.) DURING the pendency of the appeal, the appellant No. 6 Dhundhi died. After the report of the C. J. M. Aligarh, the appeal of Dhundhi stood abated. The prosecution case is that deceased Kanhi used to carry on the business of purchasing and selling milk. He used to purchase milk from the accused persons Gajraj, Janga alias Jangjit, Chandra Pal and Dhundhi and also from Munshi, Suresh, Badam Thakur and Rajpal. On 27th October, 1987 at about 9 p. m. Kamal Singh (P. W. 3) was lying on a cot near the door of his house and his brother-in-law Bidha was also there. A little ahead of that place there was a pipal tree and below that tree deceased Kanhi was lying on a cot. Charan Singh (P. W. 5) was also there. Harvested baira crop of the accused Dhundhi was lying near the pipal tree. The accused Dhundhi took the deceased Kanhi with him to the house of Smt. Dulari (PW 4) on the pretext of getting the account relating to purchase of milk settled and they arrived at the Gher of Smt. Dulari. In the meantime, accused Chandra Pal, Pemaraj and Munshi armed with pharsas and the accused persons Janga, Gajju and Ramesh armed with lathis arrived there and started beating Kanhi by wielding their respective weapons on him. Kanhi raised alarm, hearing it, Kamal Singh (PW 3), Charan Singh (PW 5) and Bidha rushed and arrived there. Kanhi had already been assaulted and on accosting of the accused persons themselves to beat Kamal Singh, they wielded their weapons and belaboured seriously Kamal Singh (PW 3 ). Kamal Singh had received injuries on his person and fell down during the course of the occurrence. Smt. Dulari had attempted to rescue the victims aforesaid and she was also beaten by the accused by their respective weapons. At that time, a chirag was burning, besides that the Chulah was also burning there. There was a burning Idntern of Bhima nearby which also emitted sufficient light at the scene of occurrence. From the aforesaid source, sufficient bright light was available at the place of occurrence. Kanhi died on the spot. Kamal Singh (PW 3) and Smt. Dulari (PW4) had received injuries in the assault. An F. I. R. of the occurrence was lodged at 11 p. m. on 23-10-78 at the Police Station Lodha by Bidha, informant. The Investigating Officer Sri Ajay Pal Singh (PW 7) who was also the Station Officer, was present at the Police Station at the time the F. I. R. was lodged. On the basis of the F. I. R. a chick report (Ext. Ka 4) was prepared and the Station Officer himself took up the investigation after the case was registered in the general diary at that time. He interrogated Bidha, informant-complainant and Sri Mahendra Singh, who had accompanied Bidha to the Police Station. The Investigating Officer thereafter proceeded to the scene of occurrence and arrived there at 1 a. m. There he interrogated Kamal Singh (PVV 3) and Smt. Dulari (PW 4 ). The Investigating Officer sent the injured persons to the Primary Health Centre, Lodha for medical examination alongwith the complainant Shyam Behari. The I. O. thereafter interrogated Charan Singh (PW 5) and Bhim Singh and others.
(3.) THE I. O. found the deadbody of Kanhi inside the house of Smt. Dulari in her Sehan. THE inquest report (Ext. Ka 6) relating to the deadbody was prepared. THE chal-lan lash (Ext. Ka 7), photo-lash (Ext. Ka 8) were prepared by him. A report addressed to the Chief Medical Officer, another report addressed to Chief -Medical Officer, Aligarh and another report addressed to the Revenue Inspector marked as Exts. Ka 8 to Ka 11, were prepared. THE deadbody of Kanhi was sealed on the spot and was sent alongwith the necessary papers for post-mortem, through constable Hari Mohan (PW 6) and Jagpal. THE site plan Ext. Ka 13 was prepared after inspection of the place of occurrence. THE recovery memo of blood-stained earth and unstained earth near the place where the deadbody of Kanhi was prepared. One Bamboo lathi and one iron Kundarka was found at the place of occurrence which was taken in possession and possession memo was prepared. THE kundarka was blood stained and the lathi was fixed with iron sham. THE tamp (chirag) was also taken in possession after preparing the possession memo (Ext. Ka 16 ). THE lantern of Khubi Ram which was burning in the house in front of the scene of occurrence, was also taken in possession by the I. O. THE accused persons named in the F. I. R. were searched but were not available in their houses. The accused persons were committed by the Judicial Magistrate for trial to the Court of Sessions under Sections 147, 148, 302 and 307 read with Section 149, I. P. C. and the Sessions Court framed the charges aforementioned.;