Giridhar Malaviya, B.K.Sharma, JJ. - (1.) BY this judgment and order dated 21.01.1980 in S.T. No. 328 of 1978, Sri G.S.N. Tripathi, the then IIIrd Additional Sessions Judge, Basti, convicted Chandrika, Faujdar, Kanik Ram, Bharat Ram, Vindhayachal, Nehar alias Gay a Prasad and Surat accused of the offence Under Section 302/149, I.P.C. and sentenced each one of them to undergo imprisonment for life, convicted each one of them of the offence under Section 307/149, I.P.C. and sentenced them to undergo R.I. for 5 years, convicted Vindhayachal accused of the offence under Section 148, I.P.C. and sentenced him to R.I. for a period of 1 year and convicted the remaining accused persons of the offence under Section 147, I.P.C. and sentenced each one of them to undergo R.I. for a period of 6 months and directed the sentences to run concurrently.
(2.) CRIMINAL Appeal No. 338 of 1980 has been preferred by Chandrika, Faujdar and Kanik Ram accused while Civil. Appeal No. 342 of 1980 has been preferred by the remaining four accused against their respective conviction and sentences. Since both the appeals have been preferred against the common judgment, the same have been connected with each other and have been heard together and they are being disposed of by this common judgment.
(3.) THE prosecution story as narrated by the deceased Desh Raj Pandey in his verbal F.I.R. dictated to head constable Bans Bahadur Yadav P.S. Paikoliya, Sub -district Haraiya, district Basti on 01.09.1978 at 8.30 a.m. which on his death on 01.09.1978 at 1.40 p.m. in the Civil Hospital became his dying declaration, was that he had gone on 30.08.1978 to Basti along with his brother Parmatma P.W. 1 to give evidence in a criminal case, that when after their evidence, they were returning from Basti, his relations Brij Mohan and Dukhra met him in Harraya and together they reached Tooti Bhiti by bus at about 7.00 p.m.. that on seeing them alighting from the bus, Faujdar accused -Appellant ran towards the grove in the east, that on seeing him running, the deceased got suspicious and, therefore, he and his brother Parmatma P.W. 1 and the relative Brij Mohan and Dukhran went inside the shop of Sukkha, that in the meantime, Faujdar accused -Appellant along with Bharat Ram, Nehar alias Gaya Prasad, Vindhayachal and Chandrika Pandey which were of his own village and with whom there was his old enmity of litigation and their associates Surat and Kanik Ram accused -Appellant came there armed with lathies, that Vindhayachal accused -Appellant exhorted his companions "Khinch lo aur maar dalo saley ko", whereupon all the accused -Appellants started pulling the deceased Desh Raj Pandey and Parmatma P.W. 1 from the shop and beating them with lathies, that Parmatma P.W. 1 managed to run from there, that the accused -Appellant pulled him (the deceased) and took him to the grove situated to the east of village Tooti Bhiti and kept on beating him in the way and then in the grove they assaulted him with lathi, knife and bricks, that the deceased kept on crying whereupon, the witnesses came to the spot and saw the occurrence.;