- (1.) A. Mateen, J. Appellants Nokhey, Shyamu, Chhedi and Gokul preferred this appeal against the judgment and order dated 25. 11. 1981 passed by IIIrd Additional Sessions Judge, Unnao in Sessions Trial No. 352 of 1981 convict ing and sentencing the appellants as under: Nokhey: Under Section 302, IPC to life imprisonment and under Section 148, IPC to two years' R. I. ; Shyamu: under Section 302, IPC read with Section 149, IPC to life imprisonment and under Section 147, IPC to one year's R. I. ; and Chhedi: under Section 302, IPC read with Section 149, IPC to life impris onment and undersection 147, 1 PC to one year's R. I.
(2.) APPELLANT Gokul son of Jiya Lal died during the pendency of the appeal and by order dated 25. 9. 2007 appeal on his behalf was ordered to abate. It is also pertinent to mention here that one Hira Lal was also charged under Section 302, IPC read with Section 149, IPC and Section 147, IPC but he was acquitted by the learned trial Court. The prosecution story as narrated in FIR is to the effect that deceased Shiv Prasad, brother of complainant Gokul, son of Chokhey Lal, was involved in a murder case of one Shanker, brother of accused appellant Shyamu. Deceased Shiv Prasad was tried for the murder of Shanker, but was acquitted. Since then Gangaram and his associates harboured enmity with Shiv Prasad and were after his life. On 17. 4. 1980, Gangaram had assaulted deceased Shiv Prasad with a Bhala with the intent to kill him: FIR of the incident was lodged under Section 308, IPC. This aggravated the bad blood between Gangaram and his uncle and the complainant's family members. Further recital in the FIR is that two days prior to the date of incident accused-appellant Nokhey had uprooted the pegs from the door of the complainant and had tried to forcibly occupy his land. Altercations ensued between accused-appellant Nokhey and deceased Shiv Prasad. Nokhey cautioned Shiv Prasad that some day he (Nokhey) would commit his murder On the fateful day i. e. 2nd June, 1980 at about 10:00 PM Shiv Prasad was going towards south of the village to ease himself. Suddenly, accused-appellant Nokhey armed with a Gandasa, accused Hira Lal (acquitted accused), accused-appellant Shyamu and accused-appellant Chhedi, sons of Bisshu and Gokul (since deceased) armed with lathi suddenly emerged from the guava grove of Babu Lal. They uttered that Shiv Prasad be done to death. Upon this, deceased Shiv Prasad made hue and cry. On hearing his alarm, Gokul Prasad (PW-1), Dwarika (PW-2), Bhure (PW-3), Kalicharan (PW-4), one Babu Lal (not examined by the prosecu tion) along with other villagers rushed the spot armed with lathi and torches. Meanwhile, all the accused fell down deceased Shiv Prasad. Shyamu and Chhedi pressed the legs of deceased Shiv Prasad, whereas Gokul and Hira Lal caught both his hands and Nokhey severed the neck of deceased Shiv Prasad. The complainant and the witnesses admonished the accused, but were threatened with similar treatment. Nokhey took the head of deceased Shiv Prasad, whereas the other accused grabbed his headless body and threw it near the grave of Shanker. Accused-appellant fled towards river Ganges with the Gandasa and the head of deceased Shiv Prasad. A frantic search in vain was made for the head of deceased Shiv Prasad. On account of fear of the accused, complainant did not lodge FIR on the same night.
(3.) COMPLAINANT Gokul Prasad scribed the written report (Exhibit Ka-1) and lodged it at police station Gangaghat, district Unnao on 3. 6. 1980 at 8:35 AM. The distance of the police station from the place of incident is six miles. Investigation was entrusted to S. I. Manohar Singh. He recorded the state ment of complainant Gokul at the police station itself and on the same day pro ceeded for the place of the incident. He found headless body of deceased Shiv Prasad lying near the grave of Shanker. He prepared inquest report (Exhibit Ka-2), photo lash (Exhibit Ka-7) and other documents. He seized the blood stained clothes (Bush- shirt and Tahmad) of deceased Shiv Prasad and prepared recovery memo (Exhibit Ka-10 ). He also collected from the spot plain and blood stained earth and sealed them into separate containers and prepared recovery memo (Exhibit Ka-3 ). He sent the body of deceased Shiv Prasad for post-mortem. He also made an attempt to recover the head of the deceased, but could not get it. He searched for the accused, who remained untraceable.;