SUNIL KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) This judgment will dispose of two appeals being Criminal Appeal No. 1241 of 2003 and Criminal Appeal No. 1242 of 2003. The High Court's judgment dismissing the appeal and confirming the conviction and sentence is in challenge in these appeals at the instance of the three accused persons, namely, accused Sunil Kumar, accused Tilak Singh and accused Ram Singh. Originally, five accused persons came to be tried for committing offences under Section 304 Part II read with Sections 147, 504 and 302 read with Sections 149, 147 and 504, IPC. They were accused Sunil Kumar, accused Jageshwar, accused Tilak Singh, accused Ram Singh and accused Munna. All the accused persons were charged and convicted for the offence under Section 304 Part II read with Section 149 and Section 147, IPC and were sentenced to suffer rigorous imprisonment for four years. All of them filed appeal before the High Court. However, the High Court convicted all the accused persons.

(2.) Before us only three accused persons have come up in appeal, they being accused Sunil Kumar and accused Tilak Singh (in Criminal Appeal No. 1241 of 2003) and accused Ram Singh (in Criminal Appeal No. 1242 of 2003). It is reported that accused Jageshwar and accused Munna are no more. That is how we have to consider the case only of three appellants. They shall be referred to as appellant Nos. 1, 2 and 3 respectively.

(3.) The prosecution case was that all the accused persons had on 23.02.1982 at about 5 p.m. in Mohalla Shivapuri within the limits of Police Station Orai, District Jalaun formed an unlawful assembly with the common object to commit the murder of Salim and inflict injuries on the person of Salim causing his death. The matter was reported by Hamid Khan, father of the deceased immediately at 5.30 p.m. It was contended therein that when Salim was working in his shop at about 5 p.m., the accused persons came to his shop and started asking Salim whether he considered himself to be a great gunda since he was showing off in the exhibition ground and thereafter started abusing him in filthy language. On being objected by Salim, all the accused started beating him with lathis/dandas whereupon Salim fell down. The complainant raised an alarm hearing which witnesses Naeem, Mohd. Ilyas @ Naushe and several other persons reached the spot. Seeing them, accused persons fled away from the scene.