AWDESH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal has been filed on behalf of the five appellants. The five appellants, along with Ram Pyare, Ram Kishore and Raj Kumar were convicted by the Additional Sessions Judge, Banda, on 13-3-1976 in Sessions Trial No.55A of 1975 under Sections 302 read with 149, 147 and 323 read with 149 of the Penal Code. They were sentenced to undergo imprisonment for life under Sections 302 read with 149, two years R.I. under Section 147 and one year R. I. under Sections 323 read with 149. The sentences were directed to run concurrently. Being aggrieved by the judgment of the trial Court, appeals were filed on their behalf, before the High Court. It appears that page No. N. Bakshi and P. N. Harkauli, JJ. heard the said appeals. According to Bakshi, J. the charges levelled against all the eight accused persons had been established beyond all reasonable doubt and on that finding he upheld their conviction and sentence. Whereas according to Harkauli, J. the prosecution had failed to prove the charges levelled against them beyond all reasonable doubt and on that finding he set aside the conviction and sentence passed against them by the trial Court. In view of the difference of opinion between the two learned Judges, the appeal was placed for hearing before B.N. Katju, J. He agreed with the findings of Bakshi, J. but while upholding the conviction and sentence of the five appellants acquitted the other three mentioned above giving them benefit of doubt for the reasons mentioned in the judgment.

(2.) According to the prosecution case one Mathura Singh was the maternal grandfather of Raghubir Singh(deceased) and Atar Singh(PW 1). After the death of Mathura Singh, Raghubir Singh, Atar Singh(PW 1) and Ram Manohar Singh succeeded to the properties of Mathura Singh as his legal heirs. But Ramadhin, Beni, Daduwa and Sarju got their names fictitiously recorded over the lands belonging to Mathura Singh. Appellant Awdesh is the son of Ramadhin. Appellant Kedar is the son of Daduwa, Beni is the uncle of Kedar. Revenue litigation started thereafter between the parties, which was pending on the date of occurrence. It is the case of the prosecution that in spite of the pendency of the dispute, Atar Singh (PW 1) and Raghubhir Singh (deceased) continued to cultivate the lands of Mathura Singh. It is said that about two and a half years before the occurrence Raghubir Singh (deceased) was assaulted by the appellant Kedar and others and in respect of that incident a case under Section 324 of the Penal Code was pending. Proceedings had also been initiated under Section 107 and was pending at the time of the occurrence. Raghubir Singh (deceased) was doing pairvi in the aforesaid cases.

(3.) On 16-12-1974 at about 8.00 a.m. Raghubir Singh (deceased), Atar Singh (PW 1) and their servant Ram Kishun (PW 3) along with one Bhagauta were going from their village to Banda. Near the culvert of Loghaura, the appellants were sitting on the culvert armed with lathis. Some of them shouted "Mar salon Ko". The deceased, PW 1 and PW 3 and Bhagauta tried to run but the accused came out from the culvert and started assaulting Raghuvir Singh(deceased). When Atar Singh (PW 1), Ram Kishun (PW 3) and Bhagauta tried to save Raghuvir Singh (deceased), they were also assaulted. They raised alarm and thereafter the appellants ran away. Raghubir Singh died on the spot, as a result of the injuries caused on his person.