N.S.GUPTA, J. - (1.) This criminal appeal is directed against the judgment and order dated 21-4-1980 passed by Sri N. S. Gahlaut, the then VIth Additional District and Sessions Judge, Allahabad, convicting the accused appellants - Jata Shankar alias Awadh Behari, Gopinath alias Challar and Shyam Sharkar under Sec. 302/34, I.P.C. and sentencing each of them to undergo life imprisonment.
(2.) The prosecution story briefly stated is as follows : The accused-appellants - Jata Shankar alias Behari, Gopinath alias Jhallar and Shyam Shankar are all residents of village Masika P. S. Naini District Allahabad. Appellants Jata Shankar and Shyam Shankar were cousin brothers and Gopinath was the nephew of Shyam Shankar. In this way they were closely related to each other. The deceased Ram Chandra was also a resident of this very village. Some time before the incident of this case, on 15-11-78, one Trivedi Prasad of this village was murdered. Shish Mani, Ram Sanjiwan and Jeevan Lal were arrayed as accused persons in that murder case. Shish Mani was the nephew of Ram Chandra deceased of this case. Ram Sanjiwan and Jeevan Lal were cousin brothers of the deceased, therefore, deceased Ram Chandra was doing Pairavi in the said murder case on behalf of Shishmani, Ram Sanjiwan and Jeevan Lal. He also filed an affidavit in connection with the bail of the accused persons of the said case. Triveni Prasad deceased of the said murder case was younger brother of accused appellant Shyam Shankar. Jata Shankar bore enmity with the deceased Ram Chandra because he was doing Pairavi on behalf of Shishmani and others, the alleged murderers of Triveni Prasad. Smt. Rajpati Devi, who was aunt of Shishmani had lodged an F.I.R. on 11-12-1978 against the accused appellants Jata Shankar and Gopinath with the allegations that Jata Shankar and Gopinath and Kesheo son of Jata Shankar had set fire to her house. The deceased Ram Chandra was cited as a prosecution witness of fact in the said case. The accused appellants, therefore, bore enmity with the deceased.
(3.) The prosecution claimed that on 9-1-1979 at about 4 p.m. the deceased Ram Chandra along with Ram Lal PW 1, Krishna Murari PW 2 and Rajmani were sitting in front of the shop of Chhotey Lal Baniya situate in village Masika. The accused appellants Jata Shankar, Gopinath and Shyam Shankar came there. Jata Shankar and Gopinath were armed with Farsas and Shyam Shankar was armed with Lathi. All these three accused appellants exhorted to kill the deceased. Hearing the exhortation of the accused appellants,the deceased Ram Chandra tried to run away after getting up from the cot, on which he was sitting. Jata Shankar and Gopinath attacked the deceased by means of Farsas. On receiving the injuries, the deceased fell down on the ground. Thereafter the accused appellant Jata Shankar again assaulted the deceased by means of Farsa on his right parietal region. Shyam Shankar appellant remained standing by the side of these two assailants saying that if anybody dared to come, he too shall be killed. Ram Lalak PW 1, Krishna Murari PW 2 and Raj Narain raised an alarm and attracted other persons. The accused persons ran away. Krishna Murari PW 2, Ram Sanjiwan, Mishra Lal and Raj Narain took the deceased to Swarup Rani Nehru Hospital at Allahabad where the deceased was examined by Dr. R.P. Singh PW 4 at about 6.30 p.m. Dr. R.P. Singh found the following injuries on the person of the deceased who was alive till then. It appears that soon thereafter at about 6.55 p.m. the deceased succumbed to his injuries at Swarup Rani Nehru Hospital.Injuries1. Incised wound on the right side of face 6" x 1" bone deep extending from lobule of right ear to mid of chin, fresh bleeding present.2. Incised wound on the right parietal region 2" x 1/2" bone deep 5" above the right ear fresh bleeding present.3. Incised wound on the right side of neck 1" x 1/2" muscle deep, fresh bleeding present 51/2" below the right ear.;