RAM SANEHI AND OTHERS Vs. STATE

JUDGEMENT

(1.) Ram Sanehi, his brothers son, Satya Prakash, Mata Din and Munshi of village Gadhanpur Qazi, P. S. Telegram, Jai Lal, Bansi Lal, Ram Babu resident of village Kachati Purwa, P. S. Indergarh, Ram Autar resident of Vishanapur, P. S. Indergarh and Shyam Behari resident of village Bhajwia, P. S. Indergarh of District Farrukhabad have appealed against their conviction under Sections 302 read with Sec. 149 I. P. C. and sentence of imprisonment for life by the IIIrd Additional District and Sessions Judge, Farrukhabad in Sessions Trial No. 204 of 1974 (State Vs. Ram Sanehi and others). Ram Sanehi has further been convicted under Sec. 148 I. P. C. and the remaining appellants under Sec. 147 I. P. C. Matadin has been convicted under Sec. 324 I. P. C. and the remaining appellants under Sec. 324 read with Sec. 149 I. P. C-The trial Judge has awarded a sentence of 18 months rigorous imprisonment under Sec. 324 I. P. C., one years rigorous imprisonment under Sec. 148 and six months rigorous imprisonment under Sec. 147 I. P. C. to all the appellants and has directed the sentences to run concurrently. The appellants have also challenged in this appeal their conviction under these sections and the sentence awarded to them thereunder.

(2.) The case of the prosecution as disclosed in the first information report lodged by P. W. 1, Rameshwar Dayal at about 9 30 P. M. on Nov. 7, 1973 is that there was enmity between appellant Ram Sanehi and him on account whereof he had implicated him, his son, Radhey Shyam and his servant, Bhajanlal and some other relatives in the case relating to a murder that took place in his family which was pending trial in the Court of Session. He (the reporter) was a co-sharer in a groundnut field belonging to Patrakhan and Kanhai near the tube-well of Rajendra Kurmi in his village. Patrakhan and he were warming themselves in the field of Patrakhan where they were looking after the groundnut crop. His son Radhey Shyam and his servant Bhajanlal as well as Rajendra son of Ram Kisun, Narain son of Ishwari, Latif Khan son of Jumman of his village as well as Govind Prasad of village Bhagwantapur who was the son of his wifes brother, came and started playing cards in the Kothri of the tube-well of Rajendra in the light of the lantern. He (the reporter) went up to the Kothri and told his son to stop playing cards and go round the other fields whereupon his son said that he would go after sometime. Soon thereafter when the reporter had reached the field, a little ahead of the Kothri at about 7-30 P. M., appellants Ram Sanehi armed with a Pharsa Satya Prakash armed with a Gandasa, Munshi armed with lathi, Matadin with a Pharsa and gunny bags, Jai Lal Dhobi with Kulhari, Banshi with a gun, Ram Babu, son'-in-law of Ram Sanehi with a pistol, Shyam Behari with a gun, Ram Autar and two other persons who were not known but could be recognised armed with lathis reached there and surrounded the door of the Kothri and fired two shots. They dragged out his son Radhey Shyam and servant Bhajanlal from the Kothri and said that they would not be left alive that day and that after dismembering them and packing them up in the gunny bags they would be thrown in the river for which gunny bags had also been brought. Saying this, the appellants started assaulting the two persons. The reporter and others who were present in the Kothri escaped and after coming out thereof raised an alarm. Narain set a heap of Makreda afire on account whereof there was sufficient light, while Govind Prasad was coming out of the Kothri, Matadin hit him with a pharsa which caused injuries to his head in the back portion. On hearing the alarm, the village people started firing their fire-arms so that the assailants ran away towards south. The reporters son Radhey Shyam and his servant, Bhajanlal had been assaulted by the assailants with the common object of causing their death with the weapons with which they were armed and the injuries resulted in their death. The report, as mentioned above, was lodged at about 9-30 P. M. at P. S. Talgram which is at a distance of about two miles from village Gadnapur where the incident took place. When this report was lodged, the Station Officer, Sudersan Lal Awashthi was present at the Police Station. According to him, the investigation was started forthwith and he recorded the statements, inter alia, of the reporter, Rameshwar Dayal and the village Chowkidar Shiv Baran who had accompanied the reporter to the police station. He then proceeded to the scene of incident. There is dispute about this claim of the Station Officer and of the time at which he took the various steps in the investigation as claimed by him. We will advert to them later However, we may notice at this stage that Govind Prasad, who subsequently appeared as P. W. 2 in the trial as an eye-witness of the incident, was medically examined by Dr. J. P. Tripathi (P. W. 7) at the Dispensary at Talgram at 10-45 A. M. on Nov. 8, 1973. He had found on his person an incised wound 0V2 cm x 1 cm deep over back of neck running transversely, 13 cm above prominence of 7th cervical vertebra which was a simple injury and appeared to have been caused by a cutting weapon, the duration being about half a day. This injury report is Ex. Ka-6. Dr. V. P. Bansal (P. W. 8) carried out the post mortem examination on the body of deceased Radhey Shyam on Nov. 9, 1973 at 3-30 P. M. at Fatehgarh. He found the following nine ante mortem injuries on his body :

(3.) He also found 10 ounces of digested food in the stomach and in his opinion, the death of Radhey Shyam was due to shock and hemorrhage as a result of the aforesaid ante mortem injuries which were sufficient in the ordinary course to have caused his death. The postmortem report is Ext. Ka. 7. The postmortem examination on the body of Bhajanlal, deceased, was also done by the same Doctor at 4-30 P. M. on 9-11-1973 which revealed the undermentioned eight ante mortem injuries on it: Injuries - Nature, exact position and measurements mentioning direction specially in incised wounds. Ante mortem injuries