SHYAMJI PANDEY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Both these appeals are directed against the judgment and order dated 14-4-1980 passed by Sri B.B. Agarwal, the then IInd Additional Session Judge, Varanasi in Sessions Trial No. 19 of 1979. We propose to decide both these appeals by this common judgment, treating Criminal Appeal No. 857 of 1980 as the leading appeal. The appellants in Criminal Appeal No. 857 of 1980 are Shyamji Pandey, Baijnath and Vijai. The appellants in another Criminal Appeal No. 869 of 1980 are Bhaiya Lal, Mithai alias Mithau, Ganesh alias Ganesu, Gopal alias Gopali and Chander. All of them have been convicted under Sec.302 I.P.C. read with Sec. 149 I.P.C. and sentenced to life imprisonment. Bhaiya Lal, Mithai alias Mithau, Ganesh alias Ganesu and Gopal alias Gopali have further been convicted under Sec. 148 I.P.C. and sentenced to two years' rigorous imprisonment. Baijnath, Shyamji Pandey, Chander and Vijay have further been convicted under Sec.147 I.P.C. and sentenced to one year' rigorous imprisonment each.

(2.) To begin with broad essentials of the prosecution case may be set forth. The victim and the deceased of the present incident was Bachanu. The incident took place on 22-6-1978 at Teliya Nala Ghat in Mohalla Kayasth Tola, Police Station Adampur, Varanasi at about 12' O clock in the noon. The report was lodged the same day at 1.05 P.M. by Ashok Kumar PW-1 son of the deceased. Bachanu deceased used to do the business of sand. The accused Baijanath and others were also engaged in the same business. There was business rivarly between the two parties and even proceedings under Sec.107/116 Cr.P.C. had been initiated between them prior to this incident. Earlier to the present to the present incident, the accused Mithai and others had assaulted Raj Kumar, brother of the complainant Ashok Kumar (son of the deceased). These two sides were on logger heads and their relations were strained. On the day of the incident at about 12' O clock in the noon some altercation and exchange of hot words took place between the wife of the deceased and mother of accused Bhaiya Lal over the question of keeping of the sand. The deceased Bachanu intervened and separated them, averting a clash. Immediately therefore, all the eight accused persons who were either relations or friends constituting one party formed an unlawful assembly with the common object of committing the murder of Bachanu. Accused Bhaiya Lal was holding a Bhujali; Mithai was armed with a knife; Ganesh was holding Danwa; Gopal was having a Gandasa and Shyamji Pandey and Baijnath had lathis. All these five accused persons with their weapons and Chander and Vijay with brick-bats and stone-bandasts assaulted Bachanu. As a result, Bachanu fell down and became unconsious. The incident was witnessed by Prahlad, Balloo, Ramji and others Ashok Kumar PW-1 took his injured father Bachanu on the Thela of Ramji PW 2 to Kabirchaura Hospital where he died at 12.35 P.M. It was thereafter that he went to the Police Station and lodged the first information report on the basis of which a case was registered. Investigation

(3.) The post-mortem over the dead body of the deceased was conducted by Dr. B.V. Subramaniyam PW 9 on 23-6-1978 at 2 P.M. The deceased was aged about 45 years. The following ante-mortem injuries were found on his person: