Sudhir Agarwal, J. - (1.) This Criminal Appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 16.05.1983 passed by Sri R.C. Gupta, Additional Sessions Judge, Mirzapur in Sessions Trial No. 35 of 1982 whereby accused-appellant (1) Bhukkhan, (2) Dev Nandan, (3) Bubu Nandan, (4) Lal Bahadur, (5) Lal Ji,(6) Lal Mani, (7) Ram Dhani, (8) Chabiraj and (9) Lal Chand have been convicted under Section 147, 302 read with Section 149, and 323 read with Section 149 I.P.C. and each of them were sentenced to undergo rigorous imprisonment for one year under Section 147 I.P.C; life imprisonment under Section 302 read with Section 149 I.P.C. and six months rigorous imprisonment under Section 323 read with Section 149 I.P.C. All the sentences were directed to run concurrently.
(2.) At the outset, it may be pointed out that appeal has already abated qua appellants-1, 2, 3 and 6. With regard to appellant- 8 also Chief Judicial Magistrate, Mirzapur has submitted report dated 04.04.2018 that he has died on 15.02.2018. In regard to certification of his death, statements of S.I. Ashok Singh, Sri Musairam, Gram Pradhan of Village, Sri Dhirendra, son of deceased appellant-8 and one Tej Bahadur, a resident of village of deceased appellant-8 have been recorded and placed on record. This appeal, therefore, also stands abated qua appellant-8 and now survives only in respect of appellants-4, 5, 7 and 9.
(3.) Prosecution case as per First Information Report, Ex. Ka-1 is that there had been long-standing litigation between Informant on one side and Ram Dhani, Harijan, resident of Informant's village Larwak, P.S. Kachwa, District Mirzapur on the other side with respect to certain land. On account of that enmity, on the fateful day, i.e., 02.03.1981, at about 6.00 AM, Informant's brother Ram Pratap (deceased) was going to Deeh with milk, as usual. When he reached the door of Dev Nandan Harijan, accused-appellants Bhukkhan, Dev Nandan, Babu Nandan, Lal Bahadur, Lal Ji, Lal Mani, Ram Dhani, Chabiraj and Lal Chand surrounded him and began to assault him by Lathis and Dandas. On alarm raised by Informant's brother, Sumaru, (Uncle-Bade Pita) of Informant and PW-2, Ram Khelawan, reached there for rescue but accused started assaulting them also. Thereafter PW-3, Balwanta, Informant's brother, Dingur and Dular Gaur, resident of Informant's village and PW 1, Informant, reached there and resisted from beating. On alarm being raised from the side of Informant and seeing several persons reaching the place of occurrence, accused appellants stopped beating and fled away assuming Ram Pratap to be dead. While injured Ram Pratap and uncle Sumaru were being taken to Police Station on two Sangaris (luggage carrier Rickshaw), lying on two separate cots in injured state, before reaching Kachwa Bazar, Ram Pratap died. Thereafter written report, Ex. Ka-1 was lodged at Police Station Kachwa, District Mirzapur at 8.30 AM. Distance of Police Station from the place of occurrence is said to be 3 miles. Chik FIR, Ex. Ka-31, was prepared on the basis of written report and case under Section 147, 323 and 302 I.P.C. was registered against accused appellants. Entry to that effect was also made in G.D., copy whereof is Ex. Ka-32. Sumaru and Ram Khelawan, injured, were taken to Mirzapur on Taxi in District Hospital. Injuries of both were examined. Sumaru was examined on 02.03.1981 at 11.30 AM by PW-14, Dr. Ramji Pandey who found following injuries on his person: 1) lacerated wound 3 cm x .5 cm x scalp deep on middle of head, 11 cm above root of nose; 2) lacerated wound 3 cm x .5 cm x scalp deep on occipital part of head, 13 cm above left ear; 3) lacerated wound 1.5 cm x .5 cm x muscle deep on left forearm backside, 5 cm below left elbow joint; 4) contusion 10 cm x 2 cm on back of left chest, 7 cm below left scapula; 5) abraded contusion 4 cm x 2.5 cm, with traumatic swelling, 10 cm x 8 cm on right scapular region; 6) contusion 8 cm x 2 cm on back the of abdomen.;