- (1.) I. P. Vasishth, J. The instant appeal is directed against the judgment and order of sentence dated 31-10-1979 passed by Sri R. S. Srivastava, the then Illrcl Additional Sessions Judge, Barabanki.
(2.) ACCORDING to the prosecution, the complainant P. W. 1 Smt. Phool Mali and her deceased husband Ram Asrey resi dents of village Hetmapur were 'mahapatra Brahmans' who usually as sisted in the performance of the last rites of the dead persons and received the usual 'maran Dan' from the bereaved families. Howsoever unpleasant the job, it was a part of their professional obligation; albeit a source of income. Accused Shobh Nath is a resident of village Kodri whereas accused Radhey Shyam, Mannu and Ram Lakhan belong to village Pandopur. Both these villages are situated in the close proximity of village Hetmapur and they too are 'mahapatra Brahmans' by caste. Obvious ly they also assist the bereaved families in the performance of the last rites of their dead and in the process obtain the usual Maran Dan. For quite some time, there was a sort of bickering and bad blood between the deceased on the side and all the ac cused on the other with regard to the dis charge of the aforesaid duties and drawing of the benefit of the Maran Dan. About four years prior to the present incident, there was a quarrel between the parties at the time of death and performance of last rites of one Mahant Guru Prasad whose Maran Dan was drawn by the deceased Ram Asrey. Two years thereafter there was yet another incident in which Ram Asrey was assaulted by the accused and the mat ter was reported to the police, but it ap pears that the issue was not stretched any further. It was alleged that on 9-1-1976 shortly before sunset Ram Asrey and his wife Phool Mali were cutting grass in the jungle of village Hetmapur, close by P. W. 2 Ram Karan @ Jawan of village Bahadur-pur and P. W. 3 Yikram of village Chimlati were also engaged in similar activity. All of a sudden all the four accused armed with lethal weapons i. e. Bankas and Kantas pounced upon Ram Asrey and in a swift and surprising move assaulted him fatally. The witnesses were scared away by the show of weapons. Immediately after the assault all the accused escaped from the spot along with their respective weapons whereas Smt. Phool Mali on finding that her husband was dead raised a hue and cry. On leaving the aforesaid witnesses to keep a watch over the body, she went to the village and collected people. She also took P. W. 5 Molhey Chowkidar to the spot and in his company remained there all throughout the night. In the morning Setai Chowkidar was also called and the dead body was entrusted to him. Then with Mol hey Chowkidar she left for the police sta tion to lodge a report. However, on the way they contacted one Beche Lal in village Kodri and got scribed the report Ext. Ka-1 which was ultimately handed over by her to the police at the police station on the same day i. e. 10-7-1976 at around 12 noon. On the basis thereof formal F. I. R. Ext. Ka-12 was recorded.
(3.) P. W. 5 In-charge police station, Jagannath Prasad investigated the matter, he went to the spot, took charge of the dead body, conducted the inquest and dis patched the dead body to the mortuary for post-mortem. The autopsy was conducted by P. W. 6 Dr. Rafat Ashfaq who found it carrying the following anti-mortem sharp weapon injuries:- "1. Incised wound 19. cm x 8 cm on the front and toe of lower neck-trachea and oesophagus and the intervening muscle and tis sue cut, 6th cervical vertable (sic) cut in the middle. 2. Incised wound 8 cm x 5 cm x cavity deep on the right side of abdomen at the sub-costal margins; direction upward medially. 3. Incised wound. 5cm x 1 cm x muscle deep on the left side of face over the mandible. " The accused remained absconding for quite some time, and could not be formally arrested before 15- 1-1976 when they surrendered in the Court. On due completion of investigation, the police booked the accused for trial and examined ten witnesses in all including the aforesaid material characters. In their statements under Section 313 Cr. PC. denying the allegations the accused pleaded false im plication on account of enmity. No defence was, however, adduced.;