- (1.) THIS criminal ap peal, is directed against the judgment and order dated 24-9-1983, delivered by Shri K. P. Nigam, the then IIIrd Additional Ses sions Judge, Lakhimpur-Kheri in Session Trial No. 114 of 1983. He convicted San too, Mangali, Shahzade and Shri Krishna under Section 304, Part II read with Sec tion 34 of the Indian Penal Code and sen tence all of them to five years rigorous imprisonment.
(2.) THE appellant Mangali is said to have died during the pendency of this ap peal. The prosecution came with a case that on 24-6-1982 at about 7. 30 p. m. , while the deceased, Arun Kumar, accompanied by complainant, Ram Babu (P. W. 1), was coming back from Pasigwan via Maigalganj, that the four appellants attacked him with fists, kicks, lathi and danda, towards west of village Sadarpur and this incident was witnessed amongst others by Ram Babu (P. W. 1), Nand Lal (P. W. 3) and Harish Chandra (P. W. 4 ). The motive al leged was, that on the same date, Karuna Shankar, brother of the deceased was declared elected as Pradhan as against Hemnath, cousin of accused Santoo. Written First Information Report was lodged with Police Station Maigalganj at 10. 30 p. m. , in which the appellants were named. The injured Arun Kumar was taken to District Hospital, Sitapur, where his injuries were medically examined on 25-6-1982 at 4. 40 a. m. by Dr. R. C. Gupta. Since the condition of the patient was serious, so he was shifted to KG. Medical College, Lucknow, where he died on 25-6-1982 at 10. 30 p. m. Autopsy was done, by Dr. R. R. P. Singh on 26-6-1982 at 2. 45 p. m. On the death of Arun Kumar, the case was converted into one under Section 304 of I. P. C. Alter the usual investigation, charge- sheet against all the four accused, was filed in the Court of Magistrate and in turn the case was committed to the Court of Sessions.
(3.) THEE accused were charged and tried under Section 302 read with Section 34 of I. P. C. They denied the charge and pleaded not guilty. The prosecution ex amined several witnesses including al leged eye- witnesses Ram Babu (P. W. 1), Nand Lal (P. W. 3) and Harish Chandra (P. W. 5 ). The learned Judge, believed the evidence of these eye-witnesses and con cluded that the accused assaulted Arun Kumar on 24-6-1982 at 7. 30 p. m. towards west of Sardarpur and Arun Kumar died of the same injuries and so all the accused committed an offence punishable under Section 304, Part II of the Indian Penal Code. The learned counsel for the appel lants, has argued that the evidence of three alleged eye-witnesses is totally unreliable, untrustworthy and unacceptable. Accord ing to him the prosecution case suffered from, various infirmities and weaknesses, so it is not safe to accept it as such.;