- (1.) THIS is an appeal under section 374 Cr. P. C. against the judgment and order dated 30. 9. 1982 passed by V Addl. Sessions Judge, Fatehpur in S. T. No. 480 of 1980 whereby the appellants Hari Ram, Harish Chandra, Munnu, Mahadeo and Moti Lal have been convicted and sentenced to life imprisonment under section 302 read with section 149 IPC. In addition to this, Harish Chandra, Munnu, Mahadeo and Moti Lal have been sentenced to two years' rigorous imprisonment under section 147 IPC and appellant Hari Ram has been sentenced to three years' rigorous imprisonment under section 148 IPC. During the pendency of appeal, appellants, Hari Ram, Munnu and Mahadeo expired and therefore their appeal has abated.
(2.) THE incident relates to 1. 8. 1979 on which date Binda Deen son of Deota Deen was done to death at about 4. 30 p. m. when he was returning from Obipur where he had gone to buy sweet root. This incident took place within the circle of police station Husainganj of district Fatehpur. His brother Goverdhan Prasad resident of Lakhpura who was an eye-witness lodged the report of this incident at police station Husainganj on the same day at 18. 30 hours against all the five appellants. It was alleged that some time before this incident, cattle of appellant Hari Ram and Moti Lal had grazed and damaged the standing crop in the field of the deceased. THEy had quarrelled at that time and the accused persons had taken the protest of the deceased as their insult and started harbouring ill will towards him. On the fateful day the deceased had gone to village Lakhpura nearby village Obipur to purchase sweet root and while he was returning to his house in the evening with the sweet root which he had purchased, the accused persons encountered him near Kalikan Ka Purwa. Accused Hari Ram was armed with an axe while the remaining four accused were armed with lathis. Out of the accused persons Hari Ram and Harish Chandra are real brothers being sons of Munnu whereas the accused Munnu and Mahadeo are also real brothers being sons of Badal. THE fifth accused Moti Lal is said to be friend and relative. All of them are residents of Kalikan ka Purwa. THE first informant who is a teacher in a primary school of Gopalpur was returning to his house on bicycle after the school had closed at four p. m. Ganga Prasad P. W. 2 is other eye-witness who was also returning from village Obipur after purchasing sweet root and was a few steps behind the victim. Sri Pal P. W. 3 resident of Kalikan ka Purwa claimed that he had seen the occurrence when he was returning to his village from the market of village Jamranwa. THE five accused persons on seeing the victim, who was carrying gunny bag of sweet root on his head started abusing him. THE deceased dropped the bag on the ground and asked them why they were abusing him. Upon this accused Hari Ram exhorted "maaro Salo Ko". After this, all the accused persons opened attack on Binda Deen with lathis and axe. THE informant Goverdhan Prasad and witnesses including Ganga Prasad and Sri Pal saw the assault, advanced towards the accused persons and challenged them. THE culprits then ran away towards their village Kalikan Ka Purwa. THE victim had received serious injuries on the head and other parts of the body and had become unconscious. On the report of the informant, crime No. 129 under sections 308/147/148 IPC was registered at the police station. Binda Deen however died on the same date at the hospital on account of above injuries and the case was thereafter converted into section 3021 PC. Investigation of the crime was taken up by P. W. 5 Shri Nath Pathak. He visited the place of occurrence on 3. 8. 1979 and prepared a site plan with the help of eye-witnesses. He also recovered the gunny bag full of sweet root lying at the place of occurrence. On the same day he recorded statements of first informant and witnesses Ganga Prasad P. W. 2 and Shri Pal P. W. 3. The inquest of the dead body was conducted by S. I. Sri Jagmohan Singh and the dead body was sent for autopsy after due formalities. Dr. V. P. Tripathi P. W. 4 who had performed the autopsy and had prepared the post-mortem report Ex. ka. 3 had found the following ante-mortem injuries on the person of the deceased:- 1. Lacerated wound oblique 1-1/2" x 1/2" x muscle deep on the left side of head 2" at the upper part of left ear. Underneath temporal bone fractured. 2. Incised wound 1-1/2" x 1/4" cm x muscle deep on the left side of head on the left temporal region of head 3" above and medially and posteriorly to the upper part of left ear. 3. Incised wound 1-1/2 x 1/4 cm x muscle deep on the left side of head 1/2" cm below the injury No. 2. Lacerated wound 1/2 cm x 1/4 cm x muscle deep on the left side of head in the temporal region 1/2" below the injury No. 3.
(3.) CONTUSION with abrasion 3" x 1" on the left side of head 2" above the lateral third part of left eye-brow. Underneath this injury blood clot present, underneath frontal and temporal bone fractured in pieces, brain lacerated; Contusion 3" x 1" on the upper most part of left upper part in the antero lateral aspect. It is oblique.;