Vinod Prasad, J. - (1.) The three surviving appellants Ram Kishan, Vishwanath and Chandrachud @ Lallu have Challenged their convictions under Section 302/149 IPC and sentence of life imprisonment and appellant Chandrachud has also challenged his conviction under Section 201/149 IPC with sentence of 5 years R.I. recorded by IIIrd Additional Sessions Judge Allahabad in Sessions Trial No. 2 A of 1975 , State v. Shashi Kant and Ors. & Sessions Trial No. 9Aof 1975, State v. Chandrachud vide his impugned judgment and order dated 7.9.1981. Both the sentences of appellant Chandrachud were directed to run concurrently. Rest of the four appellants in this appeal Shashi Kant, Muggan @ Rama Kant, Murli Dhar and Kanahiya Lal had died during the pendency of this appeal and hence their appeals have already been abated vide order dated 1 18.12.2003.
(2.) The prosecution allegations against the appellant, in birds eye view, are that Tulsi Ram Misra had six sons - Tej Dhar Misra, Shiv Bali Misra, Surya Bali Misra, Ram Bali Misra, Chandra Bali and Raj Dhar, Misra. Informant Bhol Nath is the son of Shiv Bali Misra. Chandra Bali Misra aforesaid , uncle of the informant Bhola Nath, was mured by accused Ramanand and Krishnanand with their Socio criminis accomplices and since then there was no love labour lost between the two sides. Two months prior to the present incident Suraj Bali Misra, another uncle of the informant Bhola Nath was got arrested by accused Ramanand who was ordered to be released from Jail on 24.9.1974. The appellants and other co accused were under the impression that after his release from jail, Suraj Bali Misra will take revenge from them and consequently on 23.9.1974 at 6.30 A.M, when the informant and his uncle Ram Bali Misra, wore present on the well, Tej Dhar Misra was chatting with Shyam Nagina Dubey and Bachchan Chamar at his door, Raj Dhar Misra was feeding the cattle and Manna Chamar the shepherd, was fixing the plough, a dozen plus one accused persons namely Shashi Kant, Kanhaiya Lal (armed with pistol). Ramanand (armed with rifle), Ram Krishna alias Kallo Pandey (armed with gun), Shiv Lochan alias Nibboo, Udit Narain alias Bachcha and Muggan (all armed with Gadasa), Murlidhar and Ram Krishna (Both armed with Ballam) along with 5 or 6 unknown persons raided the house of the informant Bhola Nath. Tej Dhar Misra was fired at by accused Rama Nanad (absconded) and Shashi kant with rifle and pistol respectively aud Nibboo assaulted him by Gadasa. Shrieks of the informant and other witnesses attracted Dina Nath informant's brother with women folk and children of their houses and co villagers Ram Sajivan Tiwari,Jai Mangal Mallah. Kanahiya Lal Gond, and many others. At that time Shiv Bali father of the informant was returning from his field. Assailants chased Shiv Bali Misra, Ram Bali Misra and Tej Dhar Misra to annihilate them. Shiv Bali was shot at by Ram Nanad with rifle. Shiv Lochan @ Nibboo and Udit Narain @ Bachcha assaulted him with Gadasa, and Ram Krishna @ Kallu and Murli belaboured him with Ballam as a result of which he sustained injuries. It is further alleged that in the midst of the murderous assault accused Shashi kant along with some other persons proceeded towards Ghat (riverbank) to annihilated Bechan. Women and children followed them towards riverbank. This incident was witnessed by above named witnesses and co villagers. In this mayhem three-sibling brothers Tej Dhar Misra, Shiv Bali Misra and Ram Bali Misra along with Bechan lost their lives. In the middle of the assault informant Bhola Nath paddled a cycle to 6 miles to the police station Kotwali Dehat Mirzapur and lodged an oral FIR, Ext. Ka 1, the same day at about 8.45 a.m. as crime number 166 of 74 under Sections 147, 148, 149, 302 IPC. It transpires from the record that the Case diary and GD etc. of the crime were lost. S.O. Harnam Singh of P.S. Kotwali Dehat, Mirzapur started the investigation recorded the statements of the informant, Jai Nath, Raj Dhar Misra and then proceeded for the spot where he conducted the spot inspection and prepared the site plan, Ext Ka 17, collected blood stained earth from various places and prepared it's recovery memos Ext. Ka 18 to Ka 21, recovered empty cartridges and prepared it's recovery memo Ext. Ka 22 and Ka 23. He also made a report for chemical examination of the cloths of the deceased vide Ext. Ka 24 to Ka 26. He also collected blood stained earth from the places were the deceased persons were murdered and prepared it's recovery memos as Ext. Ka 6 to Ka 11. After conducting the usual investigation he submitted the charge sheet Ext. Ka 27 against the accused Shashi Kant, Ram kripal, Udit Narain, Ram Kishan, Krishna Nand , Vishambhar, Muggan @ Rama Kant, Murli Dhar Dubey, and Kanahiya Lal on 18.11.1974. He also charge sheeted Rama Nand, Ram Shiromani, Shiv Lochan. Chandrachud accused was charge sheeted on 27.2.75 vide Ext. Ka 28. It is relevant to point out that out of 13 accused Ramanand, Ram Kripal and Shiv Lochan absconded and were never apprehended. Five other accused Shashi kant, Muggan @ Ramakant, Murli Dhar, Kanahiya Lal and Udit Narain died during the pendency of their appeals in this court and hence their appeals were, therefore abated on 18.12.2003. Hence we are left to decide appeal of only three appellants Ram Kishan , Vishambhar Nath and Chandrachud @ Lallu.
(3.) The post mortem on the dead bodies of the deceased Tej Dhar Misra and Shiv Bali Misra were conducted on 26.9.74 at 9.30 a.m. (Ext. Ka 30), and 12.10 PM (Ext. Ka 31). The autopsy on the dead body of Ram Bali Misra was conducted on 30.9.74 at 11.20 a.m. (Ext. Ka 29). So far as Bechan deceased is concerned his dead body was not found is according to the prosecution version his body was chopped off into pieces on a boat and both were submerged into the river. The genuineness of the post mortem reports have not been disputed by the accused who admitted it's correctness. How ever following injuries were found on the dead body of three deceased persons: Injuries of Tej Dhar Misra: 1. Incised wound 5cm x 1 cm x bone deep over left side of neck obliquely and vertically over middle part of left lower few underneath and cut third cartilages. 2. Gun shot wound of entry margins triangular in shape as shown in diagram and margins with the wound No. 1 and just below it over left side of neck directed up wards 6cm x 4 cm x brain cavity deep with no tattooing , charring or blackening present around the wound. Margins of wound are blackened and there is lot of echymosis present all around and under the wound. 3. Gun shot wound of entry 2cm x 1.8cm x abdominal cavity deep with blackened margins but no blacking, charring or tattooing present around the wound directed from left to right and backwards situated over left side abdomen 11 cm from umbilicus and lot of echymosis was present over the wound. 4. Gun shot wound of exit 2.2.cm x 2 cm over black lumber region 3 cm to right of middle spine. One small metallic piece recovered from the tissue underneath. Injuries of Shiv Bali Misra: 1. Incised wound 6 cm. x 0.6 cm. x tissues of neck and through the cartilage of left external ear lower part. 2. Three incised wounds parallel to each other 12 cm. x 12 cm. x tissues of neck over left side and posterior part lying obliquely and horizontal along the jaw border directed from left to right. 3. Punctured wound 1cm. x 0.8 cm. over back of left arm lower part directed forward and margins clean cut. 4. Two punctured wounds each 1m. x 0.8 m. x 1.2 m. over back of upper third left forearm directed forwards. Margins clean cut. 5. Two punctured wounds 1 cm. apart and each 1cm. x 0.8 cm. x 12 on over front of left elbow directed backwards and clean cut margins. 6. Four punctured wounds in an area of 15 cm. x 10 cm. over left side of abdomen each 1.5 cm. x 1.2 cm. x 1.8 cm. diverted from left to right with clean cut margins. 7. Six incised wounds 6 cm. x 1 cm. x scalp deep over various regions of head as shown in diagram. 8. Gun shot wound of entry 1.5 cm x 1.5 cm. x chest cavity deep directed from left to right over upper part of left axilla posteriorly. 9. Gun shot wound of exit 1.8 cm. x 1.6 cm. x chest cavity at same horizontal place and slightly towards situated over upper and front part of it axilla with in underneath pectoral region from where a metabolic place recovered. Injuries of Ram Bali Misra: 1. Contused wound area around, front and back of right elbow. 2. Contused area over outer side and front of right shoulder extending up to base of neck about 15 cm. x 10 cm. 3. Contused area right frontal bone, region 6cm. x 6 cm.;