H. C. Mital, J. - (1.) THE above named appellants have been convicted and sentenced under Sections 302/149 and 148 IPC to life imprisonment and three years R. I. respectively by Sri S. D. N. Singh, the then District and Sessions Judge, Mirzapur by his judgment dated 28-4-1978.
(2.) ACCORDING to the prosecution deceased Chhedi Lal was son of Munni Lal and Smt. Maktulia and after the death of Munni Lal Smt. Maktulia remarried Kattu father of appellants Bachchan and Bachau, Mewa, Jhuru and Makkhan were brothers. Appellant Sheo Shanker is son of Bachchan. Makkhan and Ram Nandan are sons of Jhuru. Garib is son of Mewa. Smt. Lalmani is wife of Bachchan and Smt. Kishuni is wife of Bachau. Babu Nandan is also son of Jhuru. It is alleged that Munni Lal had five Bighas of land and when Smt. Maktulia after the death of Munni Lal started living with Kattu, the latter also cultivated that land and surreptitiously got entered the name of Bachchan and Bachau. When deceased Chhedi Lal had married and started living separately in his father's house he demanded his father's land which was not given. Thereupon he filed a case in the Revenue Court. However, subsequently at the intervention of some villagers only one Bigha of land was given by Kattu to Chhedi Lal. Since then the relations between Chhedi Lal and sons of Kattu and his other relations became very strained. After the death of Kattu, Smt. Maktulia was also turned out by Bachchan and Bachau and she lived separately alone in the city. There is a Mahuwa tree adjoining the Sehan of the house of the deceased. Towards east of that Mahuwa tree is the plot of Bachchan and Bachau which earlier belonged to Munni Lal, father of the deceased. The prosecution case is that on 7-12-1976 at about 5 P. M. when the deceased along with his wife Smt. Besari PW 1 returned from his field he noted that appellants Bachchan, Bachau and Shiv Shanker were digging the roots of the Mahuwa tree to remove it. The deceased objected, whereupon the appellants asserted that they would remove the tree as its shade was damaging their crops, hence a wrangle ensued. Jhuru was standing there near by and he exhorted Bachchan, Bachau and Shiv Shanker to do away with the deceased. Thereupon Bachchan, Bachau and Shiv Shanker, rushed to their bouse which is situated at a distance of about fifty paces from the tree and returned accompanied with the rest of the accused, namely, Ram Nandan, Babu Nandaa, Makkhan, Garib, Smt. Kishuni, Smt. Lalmani, of whom Bachchan, Bachau, Shiv Shanker, Makkhan and Ram Nandan had spears, Babu Nandan had a Khanti, Garib had a Gandasa, Smt. Kishuni and Smt. Lalmani had sickles. On seeing them, the deceased ran towards east to save himself and the accused chased him and succeeded in overtaking him at a distance of about one hundred paces from the Mahuwa tree in the field of Sarju across the canal. Bachchan gave a spear blow as a result of which the deceased fell down and thereafter all the accused attacked him with their respective weapons. Jhuru who was not having any weapon is alleged to have continued to exhort them. Smt. Besari, the wife of the deceased had followed the accused in a bid to save her husband, but could do nothing. PW 2 Shital and PW 4 Sankatha Prasad also arrived there and witnessed the occurrence. Chhedi Lal was immediately wrapped in a Kathari and on a cot in a rickshaw taken to the police station. He died in the way and then at the police station Ex. Ka-1 written report was submitted by Smt. Besari at 6-30 P. M. on the basis of which case was registered and investigation started. Inquest report was prepared. Dead-body in sealed condition was sent for post mortem. Pw 3 Dr. V. P. Gupta did the autopsy on the dead-body on 8-12-76 at about 12 in the noon. He prepared the post-mortem report (Ex. Ka-2) and noted in all thirty nine ante-mortem injuries of which eight were incised wounds, seventeen were punctured wounds and the rest were abrasions and contusions. On internal examination pleura and lungs of both sides were found punctured. In the stomach semi-digested food was found. In the opinion of Dr. Gupta death was caused due to ante-mortem injuries and could have taken place on 7-12-1976 in between 5 and 6 P. M.
(3.) AFTER completion of the investigation, submission of charge-sheet etc. they were tried under Sections 147, 148 and 302 read with Section 149 IPC to which they pleaded not guilty. To prove its case the prosecution in all examined nine witnesses. The prosecution also filed affidavits of PW 6 constable Panna Nath Giri, who had taken the dead-body for post-mortem, PW 8 constable clerk Sewa Lal who had received the sealed bundles of the case, PW 11 constable Imteyaz Ahmad who bad taken the sealed bundles of the case and PW 13 constable Kailash Pati Ram who had also taken the sealed bundles of blood-stained articles etc. PW 1 Smt. Besari, PW 2 Shital and PW 4 Sankatha Prasad are the eye witnesses of the occurrence, PW 12 S- I. Sheo Prasad Singh is the Investigating Officer. The others are formal witnesses.;