SHIV MANGAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Both these appeals have arisen from judgment dated 24 -3 -1982 passed by VI Additional Sessions Judge, Mainpuri in ST No. 272 of 1980. Shiv Mangal Singh and Chhotey Singh filed Criminal Appeal No. 782 of 1982. Out of them, Chhotey Singh died during the pendency of the appeal and the same abated so far as he was concerned under order dated 2 -12 -2005. Criminal Appeal No. 794 of 1982 has been filed by Gandharv Singh and Rajvir Singh, both sons of Chhotey Singh. Gandharv Singh was convicted under Section 302 IPC with sentence of life imprisonment and the other three under Section 302 read with Section 34 IPC. To each of them also sentence of life imprisonment was awarded. That apart, all of them were convicted under Section 323 read with Section 34 IPC with the sentence of one year's rigorous imprisonment. The sentences were to run concurrently. We propose to decide both appeals together by this common judgment.

(2.) THE relevant facts may be stated shortly for the appreciation of succeeding discussion. The incident occurred on 11 -7 -1979 at about 9.00 a.m. in village Onha situate at a distance of four miles from the Police Station Kurra, District Mainpuri and the F.I.R. was lodged the same day at 10.30 a.m. by an eye -witness Brij Raj Singh PW 1. In the incident, Gopal Singh was murdered and Ram Nath PW 2 and Sompal sustained injuries. A day preceding the occurrence paddy crop grown by Naresh Singh PW 3 had been grazed by the cattle of the accused Shiv Mangal Singh and Chhotey Singh. Naresh Singh, his cousin Brij Raj Singh PW 1 and Gopal Singh deceased complained of it to the accused that very day who retorted back with abuses, threatening that their cattle would continue to cause damage the same way and that they would also deal with them properly. On the eventful day at about 9.00 a.m., Brij Raj Singh PW 1 and his brother Gopal Singh were sitting at the door of their house. Gopal Singh's son Ram Nath was going towards his fields. Four accused were at the door of one of them Chhotey Singh. Shiv Mangal Singh had his licensed rifle and the other accused were armed with lathis. When Ram Nath reached near the house of Chhotey Singh, Rajvir Singh accused struck him with lathis. On the cries of Ram Nath, Brij Raj Singh PW 1, Gopal Singh deceased and their mother Sarbati Devi rushed to his rescue. Accused Gandharv Singh then struck lathi on Sarbati Devi who fell down. Gandharv and Rajvir Singh then pulled Gopal Singh to the ground there. Rajvir Singh sat on his chest while Gandharv Singh throttled him (Gopal Singh), gagging his mouth. Naresh Singh PW 3 and some other persons were attracted to the scene but could not dare to interfere as Shiv Mangal Singh with his rifle ready in his hand was saying that anybody approaching would be killed. Chhotey Singh was hurling abuses and inciting the other accused to kill Gopal Singh. Due to fear, none could come forward to save Gopal Singh. The witnesses and other villagers who had gathered were only imploring the accused to leave Gopal Singh, pleading for his life. The accused then left Gopal Singh and went away. It was found that he had breathed his last. The dead -body of the deceased Gopal Singh was then removed by his relations and placed on a cot under neem tree at a short distance away.

(3.) ON internal examination, membranes and brain were found congested, fracture of hyoid bone was found. On opening, trachea was found red congested containing blood froth and mucus. Both lungs were congested. The death had occurred one day before due to asphyxia caused by strangulation.