PANNA CHAND JAIN, J. - (1.) THESE two D.B. Criminal Appeals arise out of the judgment passed by the learned Addl. Sessions Judge Gangapur City, dated 20th December, 1977, in Sessions Case No. 68 of 1979. State v. Kamal and 15 Ors. convicting and sentencing the appellants Namai and Kasali under Section 302, IPC to imprisonment for life and a fine of Rs. 500/ - and in default of payment of fine to further undergo 2 month's simple imprisonment.
(2.) KAMAL is appellant in D.B. Cr. Appeal No. 34 of 1978 and Kasali is appellant in D.B. Cr. Appeal No. 134 of 1978 Briefly stated, the prosecution story unfolded in the evidence is that Smt. Kalyani and her son Angad were living in the house of her father as the legal heir since Pagadi ceremoney was performed in favour of Angad, on account of which her parental relatives were not pleased with them and they wanted to grab her father's property after ousting them from the same. Kalyani (PW 4) reported orally to Sukhrojpal, Head Constable, Police -post Bamanwas that on 26th July, 1978, in the morning the accused persons, except appellants came to her field with their cattle and laid them oft'for grazing her field. When she asked them not to do so, they abused her and pushed her. In the mean time, her or other Mishriya and son Angad came to her rescue. Both of them were given beating by Lathies and Kulharies by the said accused persons. All of them ran to their houses for shelter. As they entered their houses, the assailants Ram Singh, Amar Singh, Kasali, Ganga Sahai, Ghanshyam, Mohan Singh, Babu, Bachu Gopi Sahai, Parmal etc. came from the field together and entered the house to kill them. When Angad and Mishria fled out of the house to the field for saving their lives they were followed and were caught in the field of Gauri Lal. Their hands were tied and were thereafter dragged to Bamanwas. The accused were pushing them by Kulharies and Lathis. When the crowd reached the field of Ganga Vishan, Kamal armed with sword came running from the side of the field and asked the accused to kill these two persons and started giving blows with the sword. Others were beating them with Dandas and Axes. Kasali gave blows with Kulhari. Both Angad and Mishriya died in the field of Ganga Vishan. In the same occurrence, a member of the party of the accused Bhambhu was also murdered. A case under Sections 302, 147, 148, 149, 452, 323 and 324, IPC was registered against all the 16 accused. A cross -case was also registered for the murder of Bhambhu. The police challaned both the parties and the persons of the complainant party for the murder of Bhambhu and the persons of the party of the accused for the murder of Mishariya and Angad. Both the cases were committed to the Court of Addl. Sessions Judge, Gangapur City. In the cross -case, for the murder of Bhambhu, three members of the party of complainant were convicted for the murder under Section 302 read with Sections 148 and 149 IPC. Two persons of the complainant party Angad and Mishriya also died. The learned Addl. Sessions Judge vide his judgment dated 20th December, 1977, acquitted 14 of the accused persons and convicted the appellants, Kamal and 'Kasali', under Section 302, IPC and sentenced them for imprisonment for life and a fine of Rs. 500/ - each and in default of payment of fine to further undergo rigorous imprisonment for two months.
(3.) THE prosecution has examined nine witnesses to prove the charge against the appellant and produced 47 documents, which are Ex. P1 to Ex. P/47, while the accused have produced four documents, which are Ex. D1 to Ex. D/4. The witnesses examined are PW 1 Gauri Lal, PW2 Babu Lal, PW 3 Bajrang Singh, PW 4 Kalyani, PW 5 Dr. Ghanshyam Prasad, PW6 Kanchan, PW 7 Sukhrajpal, PW 8 Ram Kishan Singh and PW/9 Badan Singh. PW 1 Guari Lai was declared hostile. PW 4 Babu Lal is a witness to prove seizure memo of the dead body of the deceased, Angad and Mishriya. He also proves the Panchnama -lash Ex. P 4. He also proved site -memo Ex. P5 and the seizure memos Ex. P6 and Ex. P7 of certain articles. PW 3 Bajrang Singh is a witness to whom the parcha -bayan Ex P8 of Smt. Kalyani was given by constable, on which he registered a case vide FIR Ex. P9 Smt. Kalyani is an eye -witness to the occurrence. She is mother of Angad and sister of Mishriya. PW5 Ghanshyam Prasad Gupta is the Doctor who conducted post -mortem and prepared post -mortem reports Ex. P 10 of deceased Mishriya and Ex. P11 of deceased Angad. PW 6 Kanchan is the daughter of Smt. Kalyani. Sukhraj Pal is PW 7. He has deposed that he recorded the statement of Smt. Kalyani and sent the same to Thana Garhmora. He also prepared Panchnama -lash Ex. P4. He also prepared Ex. P6. PW 8 Ram Kishan Singh took seven sealed pockets from Thana Bamanwas to Jaipur for chemical examination. PW 9 Badan Singh has stated to have received FIR Ex P 9 ard the case file from PW 7 Sukhrajpal. He investigated the case. He prepared site memo Ex P5. On the information given -by the accused recoveries were made Ex P33 to Ex P 45. On the information given by the accused, Kamal, on 9 -8 -1976 the sword Article 2 was recovered which was stained with blood. Recovery memo Ex. P4 was prepared by this witness. On the information given by the appellant, Kasali Ex. P4, a Kulhari Article 1 was recovered. The recovery memo is Ex 42.;