JUDGMENT N.S. Gupta, J.
1. This criminal appeal is directed against the judgment and order of convication dated 7-7-1980 passed by Sri J.P. Sharma the then II Addl. Sessions Judge, Banda in Session Trial No. 13 of 1980 convicting the accused-appellants named above sentencing them to undergo life imprisonment under Section 302,/ 149, I.P.C. and 5 years R.I. under Section 307/ 149, I.P.C. and one year R.I. under Section 147, I.P.C. each. All the sentences were made to run concurrently.
2. The prosecution story briefly stated is as follows :--
The complainant Maiyadin (PW 1) is a resident of village Atarra P.S. Atarra District Banda. His grand father was Kamta, who had three sons namely Gokul, Rajadwa and Sukhuwa, Gokul had two sons Chulbuliya and Pusaiyan (Accused), Chulbuliya has no sons. When Chulbuliya died he left behind a minor daughter who had since been married. Accused appellant No. 5 Shiv Prasad was the son-in-law of Chulbuliya. Pusaiyan (Accused) had four sons namely Jauhriya, (accused appellant No. 1), Shanti Lal (accused-appellant No. 2), Kripal (accused-appellant No. 3) and Laxmi (accused-appellant No. 4). The real sister of these accused-appellants was married to accused-appellant Janki. Rajdwa had no issues. He had a daughter who had since died, The complainant was the only son of his father Sukhuwa. He had three sons namely Jagwa (deceased Choota and Hori Lai. He owned agricul- tural land in village Bhuraiya which was adjoining to Arawpurwa. About three years before the date of the incident of this case, in which the young son of complainant Maiyadin who was aged about 27 years at the time of his murder, the complainant Maiyadin (P.W. 1) and accused Pusaiyan the father of accused-appellants Jauhariya, Shanti Lal, Kripal and Laxmi had some litigation on the point of land in which the complaintant had obtained possession of the land in village Purwa. The complainant had a house there which is said to have been demolished by the accused-appellants 1 to 4 and their father about 4-5 years before the date of occurrence of this case. Since thereafter the complainant had started living in mohalla Sulakthok of village and police station Atarra district Banda.
3. The incident of this case had taken place on 19-9-1978 at about sun set in the jungle of village Atarra which lay at distance of 21/2 kms. towards the south of this police station. At that time the complainant Maiyadin along with his son Jagwa (deceased), Chhota and Sadhwa (injured PW 2) were going from their fields to their house at Atarra. Sadhwa (injured PW 2), Jagwa (deceased) and Chhota were going ahead of the complainant when they came near the Jhal and were at a distance of about 18-20 paces, the accused-appellants and Pusaiya emerged from a nearby field in which rice crops was standing. They started assaulting the deceased, Jagwa by means of Lathis, on the exhortation of Pusaiyan. The accused-appellants also assaulted Sadhwa by means of Lathis.The complainant Maiyadin (PW 1) and his sons raised an alarm and attracted Bhauseri, ShaymLal (PW 3) and PyareyLal (PW 4). The accused-appellants after assaulting the deceased threw him away in the canal and ran away. The complainant took out Jagwa (deceased) from the canal and kept him on the Patri of the canal and found that Jagwa had died. There were a number of injuries on his body which were bleeding Sadhwa also sustained injuries and had started bleeding. Leaving the dead body of his young son Jagwa in the care and custody of witnesses namely Bhauseri, PyareyLal (PW 4) and ShyamLal (PW 3), the complainant along with injured Sadhwa who was his nephew and his younger son Chhota, went to the police station where he lodged a report Ext. Ka-1 about this occurrence. The police officially examined the injuries of Sadhwa (PW 2) and took his blood stained Baniyan in their possession.
4. Dr. K.G. Vaishya (PW 5) who was then working as Medical Officer Atarra examined the injuries of Sadhuwa (PW 2) who was also a young man of about 28 years of age in his hospital at about 11.00 p.m. on 19-9-1978 and found the following injuries on his person :-
1. Lacerated wound 1.5 cm x 1 cm x scalp deep on the right side of head 10 cm above from the middle of right eye brow.
2. Abrasion 1.5 x 0.5 cm on the back surface of right index finger at joint of 1st and 2nd phalanx.
3. Contusion 5 cm x 2 cm on the back and outer side of left forearm in the middle portion. Colour reddish.
4. Contusion 8 cm x 2 cm on the right side of back lower portion 1/3 colour reddish.
5. Contusion 7 cm x 2 cm on the left side of back upper portion 13 cm transversely away from left axilla. Colour reddish.
6. Contused selling 5 cm x 2 cm on the back left hand at root of thumb and index finger Colour reddish.
5. Dr. Vaishya opined that all the aforesaid injuries were simple and were caused by a blunt weapon like Lathi. They were fresh at the time of examination. He stated that all these injuries could have been caused at the time of sun set on 19-9-1978, the date and time of occurrence of this case.
6. The autopsy on the dead body of the deceased Jaguwa was performed by Dr. K.L. Agarwal who found the position as under :-
The deceased was a young man of about 27 years of age. Rigor mortis was present on all over the body. The Doctor found following ante mortem injuries :-
1. Laceratd wound 2.5 cm x 1.5 cm x bone deep over scalp slightly on left side 7 cm above medial end of left eyebrow.
2. Lacerated wound 4 cm x 1 cm x bone deep top of scalp slightly on right side 11 cm above right ear and 3 cm from hair tail.
3. Lacerated wound 4 cm x 1 cm x bone deep adjoint to injury No. 2 towards left side 2 cm from hair tail.
4. Abrasion 1 cm x 1 cm at elbow just below olecranian process.
7. On an internal examination the Doctor found that an inner parietal and frontal bone was fractured and there was a fracture of left middle fossa and right anterior fossa. The brain was congested and clotted blood was present between bones and brain membrane. The stomach contained about 300 gms semi digested food material and small amount of faeces was present in both intestines. The bladder was empty. According to the opinion of Dr. Agarwal the deceased had died due to shock and haemorrhage which resulted from the aforesaid ante mortem injuries. He opinied that the injuries were sufficient in the ordinary course of nature to cause death. He took out blood stained Bandi, Kurta, payjama and Langot from the person of the deceased and sent them to the police in a sealed cover.
8. The investigation into the matter was conducted by S.I. Sarnam Singh (PW 9). He immediately rushed to the scene of occurrence and prepared inquest report Ext. Ka-5 in respect of the dead body of deceased Jaguwa and sent the same for post mortem examination through constable Mahrani Deen (PW 8). He inspected the scene of occurrence and prepared site plan Ext. Ka-5. He recovered blood stained and simple earth from the scene of occurrence and prepared recovery memo Ext. Ka-10 about the same. He conducted investigation into the matter till 22-11 -1978 and recorded statements of the witnesses. Further investigation of the case was taken up by S.I. A.P., Chaturvedi who submitted the charge sheet against the accused appellants. The Chief Judicial Magistrate, Banda had committed the accused-persons stand trial before of Sessions at Banda vide order dated 19-9-1978.
9. Sri J.P. Sharma, the then II Addl. Sessions Judge, Banda framed charges under Sections 147/ 302 read with Section 149 and 307, I.P.C. against the accused appellants as also Pusaiya who pleaded not guilty and claimed trial.The accused appellants Jauhriya, Shanti Lal, Kripal and Laxmi as also their father Pusaiyan denied their participation in the occurrence in question and maintained that they have been falsely implicated into the case due to enmity. Accused appellants Shiv Prasad and Janki also pleaded 'not guilty' and maintained that they too have been falsely implicated into the case due to enmity. The accused appellants did not adduce any evidence in their defence. After needful trial into the matter the learned trial Judge found Pusaiya 'not guilty. He accordingly acquitted him.
10. The learned trial Judge found the accused appellants Jauhariay, Shanti Lal, Kripal, Laxmi, Shio Prasad and Janki guilty under Sections 147/ 302/307, I.PC. He accordingly convicted and sentenced them as aforesaid, Hence the appeal.
11. We have heard Sri W.H. Khan learned counsel for the accused-appellants and Sri VS. Singh, A.G.A. learned counsel for the State and perused the records of this case.
12. It was vehemently argued by learned counsel for the accused-appellants that Maiyadin (PW 1), Sadhwa (PW 2) were father and cousin brother respectively of the deceased Jaguwa. Their evidence was partisan. The other two eye witnesses namely ShyamLal and PyareyLal were chance witnesses and were wholly unreliable and, therefore, the learned Court below grossly erred in convicting and sentencing the accused appellants. We proceed to scrutinise the respective contentions of parties as under :-
Accused appellants Jauhariya, Shanti Lai. Kripal and Laxmi. All sons of Pusaiya, Accused (since acquitted).
13. It is clear from the perusal of the records of the case as also the medical evidence that the young son of the complainant Maiyadin (P.W. 1) namely Jaguwa who was then aged about 27 years was done to death and his nephew Sadhwa (P.W. 2) was assaulted by means of Lathis and number of contusions and lacerated wounds were found on the persons of the deceased as also on Sadhuwa (P.W. 2) who had given eye-witness account of the incident before the court below. The medical evidence of Dr. K. L. Agarwal (P.W 7) who conducted autopsy on the dead body of the deceased on the next date of the occurrence viz 20-9-1978 at 2.45 P.M. clearly proved that a number of lacerated wounds as also an abrasion were found on the person of deceased Jaguwa. Dr. Agarwal found that frontal parietal bones of the skull of the deceased were broken and clotted blood was present in the membranes of the deceased. He clearly opined that the deceased should have died because of these ante-mortem injuries. Similarly the medical evidence of Dr. K. C. Vaishya (PW. 5) fully proved that he had medically examined P.W. 2 Sadhuwa who too was a young man of 27 years of age in Atarra dispensary where he was posted as medical Officer on 19-9-1978 at 11.00 P.M. and found a number of contusions and lacerated wounds as detailed above in the body of this judgment. He clearly opined that all those injuries were caused by a blunt weapon like Lathi and these injuries could have been caused at the time of sun set, the date and time of the occurrence of this case as put forward by the prosecution before the Court below.
14. Now the pertinent question which arises before this Court is to determine as to whether or not the accused-appellants facing trial before this Court were responsible for causing the said injuries.
15. Court witnesses of fact namely Maiyadin (P.W. 1) the father of the deceased, Sadhuwa (Injured, P.W. 2), ShyamlLal (P.W. 3) and PyareyLal (P.W. 4) were examined by the prosecution before the court below. P.W. 5, Dr. K. C. Vaishya was the Medical Officer who examined the injuries of Sadhuwa, P.W. 7 Dr. K. L. Agarwal was the medical officer who conducted autopsy on the dead body of the deceased Jaguwa and P. W. 6, Constable Prajapati was formal witness who took the injured Sadhuwa to P.H.C. Dispensary at Atarra, P.W. 9, S.I. Sarnam Singh was the Investigating Officer of this case.
16. For determining the guilt of the accused appellants we now proceed to scrutinise the occular evidence of these four witnesses of fact.
17. Maiyadeen, P.W. 1 has stated in his statement on oath before the Court below that the Kamta was his grand father who had three sons viz. Gokul, Rajwarwa and Sukhuwa. Gokul had two sons, Chulbuliya and Pusaiya (accused) who has since been acquitted by the court below. Chulbuliya had no son. He left behind him a minor daughter who was marked to accused appellant Shiv Prasad, hereinafter referred to as A-5. Pusaiya had four sons viz. Jauhariya (A-l), ShantiLal (A-2), Kripal (A-3) and Laxmi (A-4). Accused appellant Janki (A-6) was the husband of the sister of accused appellant Shanti and Laxmi. Rajwaiwa had a dauther who had since died is-sueless. The complainant Maiyadeen, P.W. 1 is the sons of Sukhauwa. He had three sons viz. Jaguwa (deceased) Chotwa and Hori Lai. Thus from the above narration the following pedigree is borne out:-
Kamta __________________________________________________ | | | Gokul Rajwaiya Sukhauwa ___________________ | | | | Chulbuliya Pusaiya Maiya Deen Shiv Prasad | (complainant P.W. 1) son-in-law of | Chulbuliya (A-5) | | _____________________________ | | | | | Jagwa (deceased) Chotwa Hori Lal _________________________________________________ | | | | Jauhariya Shanti Lal (A-2) Kripal (A-3) Laxmi (A-4) (A-1) son-in-law of Janki (A-6) Pusaiya
18. He stated that he had agricultural plots near the hemlet of village Bhuraiya Arav. He stated that about three years before the occurrence of this case, a litigation has followed in between him and the accused Pusaiya, the father of the accused appellants Jauhariya Shanti Lal, Kripal and Laxmi, in which he had won and obtained possession over the land. He stated that he had a house in the hamlet of village Purwa which was demolished by the accused appellants 1 to 4 & his father about 4-5 years before the occurrence of this case and since thereafter he had started residing in village Sulakthok PS. Attra. He used to the village Purwa to look afteF his agricultural land. Bhaiya Deen, RW. 1 stated that on the date of occurrence at the time of sun set while he was returning from his fields along with his son Jagwa (deceased) Chotwa and Sadhwa (injured) P.W. 2 and were coming to Atarr where he was residing and when he reached on the patri of canal, the accused appellants came out from a nearby paddy field. They were all armed with lathies. They all started assaulting his son Jagwa by means of lathies. Pusaiya accused who has since been acquitted by the trialr court itself exhorted to kill the deceased and thereupon the accused appellant assaulted the deceased Jagwa and Sadhwa, P.W. 2, by means of lathies. He stated that he and his younger son Chotwa raised an alarm and attracted Shyam Lal, P.W. 3 arid Pyarey Lal, P.W. 4. They all challenged the accused persons. After assaulting the deceased Jagwa & Sadwa P.W. 2 the accused appeallant away the deceased into the canal and ran away. Bhaiya Deen, P.W. I stated that after the running away of the accused persons, he took out the deceased from the canal; put him on the patri of the canal but found that he was dead, because of the injuries caused to him. His injuries were bleeding. His clothes were stained with blood. Sadhwa, P.W. 2 was also injured and his injuries were also bleeding. He stated that leaving the dead body of the deceased in the care of Osri, PyareyLal P.W. 3 and Shyam Lal (P.W. 4) he alongwith Sadhwa, P.W. 2 and younger son Chotwa started for police station on foot where he lodged on oral report Ex. Ka. 1 about the occurrence. He stated that the injuries of Sadhwa were examined by the police. His blood stained Banyan was taken by the police into its possession which was Ex.1. Thereafter the police sub-inspector came on spot. He carried on the inquest report in respect of the dead body of the deceased and sent the same for post-morten examination. During the course of his cross examination before the Court below Bhaiya Din, P.W. 1 stated that the partition suit in which he had won was going on since the year 1954-55. He was unable to state as to whether or not the preparation of final decree was set aside by the appellate court or not. He stated that he had not filed any objec-tion in the appeal. He maintained that although he was defeated in the appeal, but he did not take ill of it because he had already obtained his share. He admitted that the appeal against the final decree was preferred by the accused Pusaiya. He stated that the Court Amin had put him in possession of the land although the case was not finally decided till then. In the decree, the land was divided into three shares. One for Pusaiya and the other for Chulbuliya and the third for Rajauwa. After the death of Sukauwa, he was unpleaded as a party. The application for the preparation of the final decree was moved by Raja Ram. Thereafter Rajauwa and Chulbuliya had also died. He stated that in the entire land, half share was given to him and half was given to Posaiya. He maintained that he had not filed any report regarding the demolition of his house by Posaiya. He stated that Posaiya had his house in the hamlet of village Purwa and his residence was in village Atarra. He stated that he had not lodged a report regarding the demolition of his house because Posaiya had assuredhim to get his house-re-constructed, but in spite of the fact that Posaiya did not get his house re-built, he did not file any complaint etc. against Posaiya. He maintained that whenever he tried to re-built his house Posaiya used to run to assault him. He stated that the house of Sadhwa was near the Purwa of Kartal. He stated that his son Jagwa (deceased) was married and had left behind him his wife. The younger son Chotwa was also married but Hori Lal was unmarried. He stated that Sadhwa used to reside in his village. He was unable to say whether Sadhwa was elder to his son or younger. He was unable to state the age of Sadhwa. He stated that Sadhwa did not reside with him at Atarra, but on the date of occurrence he reached there. Sadhwa was residing at the house of a Brahmin for about a year. Sadhwa and Jagwa were close relations and associates. Whenever Sadhwa used to got to Atarra sometimes he used to reside with him and sometimes with the Brahmin. Bhaiya Lal stated that about a day before the date of incident Sadhwa had come and had stayed with Brahmin with whom he had worked and on the next day he met him and the deceased who went together to look after the fields. He stated that on the date of occurrence after taking his lunch he started in the afternoon. Jagwa (deceased) had gone to the Field prior to him. His meals was sent at the fields. Sadhwa had gone to meet the deceased from his house in the afternoon. He started from his house. The meals of Jagwa (deceased) were taken by his wife and children prior to his departure from the house. He stated that when he reached in his field there was sufficient light of the day and when he started from there they it was time of sun set. He maintained that when he started from his fields there was sufficient light of the day. When he reached at his field Sadhwa, Jagwa and Chotwa were present there. His wife came back from the fields prior to his return. He stated that his wife did not serve the meals in his presence. He maintained that from the hamlet of Purwa, Atarra was situate at a distance of one Kos meaning thereby one and a quarter mile. He stated that when he had started from his house he was having Danda in his hand. Jagwa, Sadhwa and Chotwa were also having lathi and Danda. He stated that Hori Lal had taken his Bhainsa. He had two Bhainsa. but no cultivator. He maintained that on the day of the occurrence, deceased Jagwa and injured Sadhwa had looked after his fields. They remained sitting there. He stated that there was a new Waterfall near his fields which was situate at a distance of about one Kos and 200-300 yards from his fields. He went there on foot and had lodged oral report at Police Station. He stated that Sadhwa injured and his younger son Chotwa had also gone to the police station to lodge a report. He stated that at the time of assault of his son, the sun was about to set out the sunshine was there. He further stated that he was aged about 60-65 years but Posaiya was elder to him. He stated that Shiv Prasad accused was residing in village Jauhari. He was a resident of that village and accused appellant Janki was the resident of Bhaganpur. He stated that he had seen the accused appellant Janki and Shiv Prasad at the time of occurrence and not before that. Although they used to come and go to the accused persons since before. He stated that he had no enmity with Janki and Shiv Prasad. While giving the version of incident Bhaiya Deen stated that when the accused persons met him, Jagwa (deceased) and Sadhwa injured were going together following each other and he was at some distance from them. His son Chotwa was coming behind him. When the accused appellants assaulted the deceased he was at a distance of 7-8 paces from then and had seen the accused appellants assaulting the deceased but not prior to that. He stated that the accused appellants first all all assaulted Jagwa and then they assaulted Sadhwa. Posaiya had exhorted to kill. He stated that Posaiya remained standing when these accused appellants had asaulted his son Jagwa and Sadhwa (Injured). He was unable to stated the numbers of assaults but very clearly maintained that the accused appellants had as saulted his son and Sadhwa. He stated that fearing assault upon himself, he and his younger son did not intervene and remained crying. He stated" that Sadhwa had run to rescue Jagwa (deceased) then he too was assaulted. He stated that when he and witnesses had exclaimed then the accused appellants ran away throwing the deceased into the canal. Then his younger son Chotwa jumped into the canal and took out the deceased from the canal where he tried to take out water from the stomach of his son, but he became unconscious and had died. Bahaiya Deen, P.W. 1 was specific in his statement that the accused persons had first assaulted Jagwa and then they had assaulted Sadhwa.
19. It would thus be seen from the evidence of Bhaiya Deen that he was a collateral of Posaiyaland the accused appellants Jauhariya, Santi Lal, Kripal and Laxmi were the sons of Posaiya. They were on enmical terms on the point of land left by their forefathers and about which a litigation was going on. Since the complainant, accused Posaiya and his sons were each other collaterals, it is probable for us to believe that because of the litigation on the point of land and the demolition of the house of the complainant by Posaiya and his sons, the relations of the complainant and his sons on one hand and Posaiya and his sons on the other hands were strained. Thus there was a well founded motive on the part of Posaiya and his sons to do away with the deceased Jagwa.
20. P. W. 2 Sadhu Prasad was the injured eye witness of the occurrence. He fully supported the prosecution story on the point that when near about sun set, he alongwith the deceased Jagwa, Maiyan Deen and Chotwa were returning from the fields of the complainant and when they came near the patri of canal, the accused appellants emerged from the nearby paddy fields. They were armed with lathis. They assaulted Jagwa on the exhortation of Posaiya. He further stated that he too was assaulted by the accused appellants, Maiya Deen and Chotwa made hue and cries and attracted Bahusery, Pyare Lal, P.W. 4 and Shyam Lal, P.W. 3. The accused persons threw away the deceased Jagwa into the canal and ran away. After running away of the accused appellants, the deceased Jagwa was taken out from the canal. He was found dead because of the injuries inflicted upon him by means of lathies by the accused appellants. He stated that Maiya Deen thereafter went to the police station to lodge a report about the matter. During the course of his cross-examination he stated that the accused appellants bore enmity with the complainant Maiya Deen on the point of land and the litigation was going on in between the complainant and the accused persons. Although this witness was related as cousin brother of the deceased but the fact remains that he was an injured eye-witness of the occurrence who sustained a number of injuries on his person at the hands of the accused appellants. The statement of this witness is fully corroborated by the medical evidence of Dr. K. G. Vaish, P.W. 5. It therefore, deserves credence and is accordingly believed.
21. P.W. 3 Shyam Lal and P.W. 4 PyareyLal have also given eye-witness account of the occurrence and they in their statement on path before the Court below have clearly fastened the liability of killing the deceased by the accused appellants and further for throwing away his body into the nearby canal. They also stated that Sadhu Prasad, P.W. 2 was also assaulted by the accused appellants in the occurrence of this case which took place at the time of sun set when there was sufficient light of the day.
22. It would thus be seen that besides the complainant Maiya Deen the injured Sadhu Prasad, Shyam Lal and Pyarey Lal have also given a clear and consistent eye witness account of the assault having been made by the accused appellants by means of lathies upon Jagwa and Sadhwa and further for throwing away the dead body of Jagwa into the canal. It is clearly proved by the medical evidence of Dr. K. M. Agarwal, P.W. 7 that a number of lacerated wounds caused by means of lathi were found on the persons of the deceased and that the deceased should have been died on 19-9-78 at the time of sun set, the date and time of occurrence put forward by the prosecution before the Court below.
23. Thus to us all the witnesses appear to be quite reliable and their statement were lightly believed by the Court below.
24. It was pointed out by the learned counsel for the accused appellants that there was delay in lodging the FIR and that the presence of all the aforesaid prosecution witnesses of fact at the scene of occurrence appears doubtful. We are unable to agree. We can well realise the agony of an unfortunate father like Maiya Deen whose young son aged about 27 years was done to death and was thrown into canal. It should have taken some time for the complainant to bring out the dead body of the deceased from the canal and then again the complainant and the witnesses present on the spot should have tried to put out water from the stomach of the deceased and in that connection also some time must have been consumed. Aggrieved father who saw his son being killed with his own eyes and who went to the police station on foot which lay at a distance of about two and half kilometres must have taken some time to recover from the instant shock and then to proceed to the police station to set the machinery of law into motion.
25. It is the common practice with the villagers returning to their homes after working for the whole day at their fields at the time of the sun set. Thus there was nothing unnatural or improbable in the conduct of the complainant, his sons deceased Jagwa, his nephew Sadhwa (injured) Chotwa and witnesses Shyam Lal and Pyarey Lal to have witnessed the occurrence with their own eyes.
26. The circumstances that injured Sadhwa was also taken to the police station at the time of lodging the FIR and was medically examined on that very night by Dr. K. G. Vaish, P.W. 5 at about 11.00 P.M. and a number of contusions and lacerated wounds on his person were found and further the circumstances that the Investigating Officer S.I. Sarnam Singh, P.W. 9 immediately rushed to the scene of occurrence and found dead body lying on the patri of canal and recovered blood stained and simple earth from the scene of occurrence and prepared recovery memoes about the same, fully prove that the deceased was done to death in the manner and circumstances suggested the prosecution.
27. However, it is the duty of this Court to sift chaff from the grain and truth from the falsehood. Admittedly the court below gave benefit of doubt to the accused Pdsaiya who was the father of the accused appellants Jauhariya, Santi Lal, Kripal and Laxmi to whom the role of exhortation was assigned in the averment of the FIR as well as in the statement of the witnesses. There was admittedly litigation going on in between the complainant and Posaiya.
Accused appellant Janki. and Shiv Prasad.
28. It has come in the evidence of Maiya Deen, P.W. 1 himself that accused appellant Janki was the son-in-law of the Posaiya and Shiv Prasad was the son-in-law of Chulbuliya. Chulbuliya was the uncle of the complainant Maiya Deen. It is further clear from his statement that one of his uncle viz. Rajauwa had no son. He had a daughter who had died issue-less. There was admittedly litigation in between the parties on the point of ancestral land left by Kamta, the grandfather of the complainant. Accused Shiv Prasad was a resident of village Jorahi, Police Station Kotwali, district Banda and Janki was resident of Bhaganpura, police station Kotwali, Arvi, district Banda. Thus both were residing at a place different than that of accused appellants Jauhariya, Santi Lal, Kripal and Laxmi. When there were litigations on the point of land and when the complainant on one hand and Posaiya the complainant on one hand and Posaiya the father of the accused appellants Jauhariaya, Santi Lal, Kripal and Laxmi on the other hand were litigations before the court regarding their ancestral property, the possibility that the complainant falsely roped in Janki, the son-in-law of Posaiya and Shiv Prasad, the son-in-law of Chulbuliya along with Posaiya and his four sons cannot be ruled out. We, therefore, consider it safe and proper to give benefit of doubt to these two accused appellants viz. Shiv Prasad and Janki and set aside the finding of fact recorded by the court below against these two accused persons.
29. Thus, in the result we uphold the finding of fact recorded by the court below regarding the guilt of accused appellant Jauhariya, Santi Lal, Kripal and Laxmi, all sons of Posaiya and maintain that they in furtherance of their common intention were responsible for committing culpable homicide amounting to murder of deceased Jagwa and furthej attempting to kill Sadhwa, the cousin brother of deceased Jagwa and convict the accused appellant Jauhariya, Santi Lal, Kripal and Laxmi under Section 302 IPC read with Section 34 IPC and maintained their conviction and sentence of life imprisonment under Sections 303/ 34 of IPC.
30. We further sustain the guilt of the accused appejlant with regard to the injuries caused to Sadhwa and thereby committing attempt to murder him also as well and maintain their conviction under Section 307/34 IPC.
31. We set aside the conviction of the accused appellants in so far as it relates to their conviction under Section 147 IPC. We give benefit of doubt to accused appellant Shiv Prasad and Janki and set aside their conviction and sentence recorded by the court below under Sections 147/ 303/307/149 IPC and hold them not guilty and acquit them.
32. The sentences inflicted upon the accused appellants Jauhariya, Santi Lal, Kripal and Laxmi Shall run concurrently. Thus the appeal in so far as it relates to Shiv Prasad and Janki is hereby allowed. The appeal in so far as it relates to accused appellants Jauhariya, Santi Lal, Kripal, and Laxmi is hereby dismissed.
33. The accused appellants Jauhariya, Santi Lal, Kripal and Laxmi are on bail. Their bail bonds are hereby cancelled. C.J.M. Banda is directed to issue all sorts of coercive processes against these four accused appellants viz. Jauhariya, Santi Lal., Kripal and Laxmi and to commit them to prison forthwith. He shall submit compliance report to this court within a period of six months from the date of this order.
34. Accused appellants Shiv Prasad and Janki are hereby acquitted. Their appeal stands allowed and the order of conviction and sentence passed by the court below as against them is hereby set aside. They are on bail, their bail bonds are discharged and they need not to surrender.
35. Let a copy of this judgment along with the record of the case be sent to the court below for needful compliance and report as directed above.