B. N. Katju, J. - (1.) SIYA Ram Upadhya and Vijai Upadhya have filed Criminal Appeal No. 356 of 1978 and Bhoora, Lorika, Nanhaku, Bhikhari and Kunmun have filed Criminal Appeal No. 357 of 1978 against the judgment of III Additional Sessions Judge, Varanasi dated 4-2-1978 passed in Sessions Trial No. 152 of 1976. All the appellants have been convicted under Sections 302/149, 307/149, 324/149 and 323/149 IPC and have been sentenced to life imprisonment, five years rigorous imprisonment, one year rigorous imprisonment and six months rigorous imprisonment respectively. Nanhaku appellant has further been convicted under section 147 IPC and has been sentenced to six months rigorous imprisonment. The remaining appellants have further been convicted under Section 148 IPC and have been sentenced to one year's rigorous imprisonment. All the sentences were ordered to run concurrently.
(2.) BRIJ Mohan PW 3 is the son of Rambodh PW 1 and Gopal and Sheorati deceased were brothers of Rambodh PW 1. Sadhu Upadhya and Sheo Shanker Upadhya co-accused are brothers. Vijai Upadhya appellant is the nephew of Siya Ram Upadhya appellant and they are the collaterals of Sadhu Upadhya and Sheo Shanker Upadhya co- accused. The case of the prosecution is that Gopal deceased had instituted a case under Section 436 IPC against Ram Surat Singh co-accused, Rekhai Singh and Fatingi Singh prior to the occurrence in which the aforesaid persons were convicted and sentenced to imprisonment. Lorika appellant had illicit relations with the wife of Gopal deceased and had abducted her about six months before the occurrence. There was litigation between Sadhu Upadhya and Sheo Shanker Upadhya co-accused on the one hand and Ram Bodh PW 1 and others on the other over land which was pending at the time of the occurrence and 2-9-1974 was the date fixed for hearing in that case in the court at Varanasi. On that day at about 5 a. m. while Rambodh PW 1, Dashmi PW 2 and Gopal and Sheorati deceased were going on two cycles to Varanasi from their village Nawahi and had covered a distance of about hundred paces and had reached the culvert of the canal they told Brij Mohan PW 3 who was accompanying them on foot to go back to the village. After Brij Mohan PW 3 had left and they had covered a distance of about one furlong on cycles all the appellants and Vishwanath Singh, Ram Surat Singh, Lalta Singh, Jhuri Singh, Sadhu Upadhya, Sheo Shanker Upadhya, Sadhu Singh, Bansh Lochan Singh, Sikhi, Ramroop and Swaroop co-accused and about fifteen others came out of the paddy and Arhar fields which were near the canal patari shouting ' Maro Maro '. Siya Ram Upadhya and Vijai Upadhya appellants were armed with guns while the other appellants and the co-accused and others were armed with Gandasas, Lathis and spears. On seeing them they left their cycles and tried to run towards the village but they were surrounded by the appellants and the co-accused and their associates and two shots were fired and Ram Surat Singh co-accused assaulted Rambodh PW 1 with his Gandasa as a result of which he fell down. Ghoora and Bhikhari appellants and Sikhi co-accused thereafter assaulted him with Gandasas and other appellants and co-accused assaulted him with Lathis and spears as a result of which he fell down and became unconscious. The appellants and the co-accused also assaulted Dashmi PW 2, Brij Mohan PW 3 and Gopal and Sheorati deceased with the weapons with which they were armed as a result of which they received injuries and Gopal and Sheorati deceased died on the spot.
(3.) THE first information report was lodged by Brij Mohan PW 3 at Police Station Chandauli at 6.30 a. m. on the same day (2-9-1974), the distance of the Police Station from the place of occurrence being four miles. The injuries of Rambodh PW 1, Dashmi PW 2 and Brij Mohan PW 3 were examined by Dr. J. B. Rai PW 7 on 2-9-1974 at 8 a, m., 8.20 a. m. and 8,45 a. m. respectively and the under mentioned injuries were found on their person : Rambodh 1. Lacerated wound 3 1/2 cm x 1 em x 1/2 cm deep on left side of frontal bone region of the head. 2. Contusion 4 cm x 1/2 cm with bruise on left upper lid including upper eye brow. 3. Incised wound 5 cm x 1/2 cm x 1/2 cm deep on right external ear. 4. Incised wound 5 1/2 cm x 1/2 cm x 1/2 cm deep just below the right mastoid bone Bleeding present. 5. Incised wound 7 1/2 cm x 1 cm x 3/4 cm deep on lower part of right parietal bone region of the head 2 1/2 above the injury no. 4 suspected fracture of parietal bone of the affected part. Advised X-ray of the skull. Bleeding present. 6. Incised wound 3 cm x 1/2 cm x 1/4 cm deep on right side of the occipital bone region of the head. Bleeding present. ;