Babu Ram Yadav & Others vs State Of U.P. on 12 August, 2016

[Cites 10, Cited by 1]

Allahabad High Court

Babu Ram Yadav & Others vs State Of U.P. on 12 August, 2016

(Delivered by Hon'ble Bala Krishna Narayana, J.) Heard Sri V.P. Srivastava, learned senior Advocate assisted by Sri Ranjay Singh, learned counsel for the appellants, Sri J.K. Upadhyay, Kumari Meena and Rahul Asthana, learned A.G.A. for the State.

The appellants, Babu Ram (A1), son of Thothi Deen, Bhaiya Lal, Hira Lal (A2 & A3) both sons of Jayanti, and Jharihag (A4) son of Vega and Baba alias Rai Sahab Yadav have approached this Court under Section 374(2) Cr.P.C. by filing this appeal challenging the veracity and sustainability of their conviction and sentence order dated 9.7.2008 recorded by Addl. Sessions Judge, Court no. 3, Jaunpur in S.T. No. 333 of 1991, arising out of Case Crime no. 178 of 1989, police station-Baksha, district-Jaunpur, under Sections 147, 148, 302/149, 307/149 I.P.C.

Learned trial Judge after collating the evidences tendered before it during the session trial and summuating the facts and circumstances convicted appellant, Babu Ram (A1) under Sec tion 148, 302 read with 149 and 307 I.P.C, appellant Jharihag (A4) under Sections 148, 302, 307/149 I.P.C, appellants, Bhaiya Lal and Hira Lal (A2 & A3) under Sections 147, 302/149, 307 read with section 149 I.P.C. and sentenced Babu Ram (A1) to one month simple imprisonment and a fine of Rs. 2000/- and in default of payment of fine three months' additional simple imprisonment under Section 148 I.P.C, 10 years simple imprisonment together with fine of Rs. 10,000/- and in default of payment of fine 6 months' additional simple imprisonment under section 307 I.P.C. and imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine 6 months' simple imprisonment under Section 302/149 I.P.C, A4 Jharihag to one year simple imprisonment and a fine of Rs. 2000/- and in default of payment of fine 3 months' additional simple imprisonment under Section 148 I.P.C, 10 years' simple imprisonment and a fine of Rs. 10,000/- and in default of payment of fine 6 months' additional simple imprisonment, under Section 307/149 and imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine additional simple imprisonment of 6 months, under Section 302/149 I.P.C. and A2 and A3, Bhaiya Lal and Hira Lal to one year simple imprisonment and a fine of Rs. 2000/- each and in default of payment of fine additional simple imprisonment for three months' under section 148 I.P.C. 10 years' simple imprisonment and a fine of Rs. 10,000/- and in default of payment of fine additional simple imprisonment for 6 months' under Section 307/149 I.P.C. and imprisonment for life together with fine of Rs. 10,000/-each and in default of payment of fine additional simple imprisonment for 6 months under Section 302/149 I.P.C.

Learned trial Judge has further directed that all the sentences of the accused shall run concurrently.

Narrated briefly gist of the prosecution case as was mentioned by the first informant Sri Ram Sundar Yadav, PW1 in his written F.I.R. (Ext.KA1) and later testified during trial by the fact witnesses is that the informant and his nephew Raj Bahadur were sleeping on a wooden cot in a place adjacent to the verandah of informant's house, injured Danbahadur was sleeping on a cot in the courtyard on which a mosquito net was fixed and Manbahadur (deceased) was sleeping on a cot in the west of the tube well and few paces away in the west Ram Samuch, son of Ram Murat and Mahendra, son of Ram Indar were also sleeping. The place was illuminated by an electric bulb. On hearing shrieks of Danbahadur, the informant woke up with a start at about 4:00 A.M. and saw A1, Babu Ram assaulting Danbahadur on his neck with a "tegara" with the intention of causing his death, while Bhaiyalal, Hiralal, both sons of Jyanti armed with lathi-danda and Jharihag son of Venga armed with "gadasa" and Baba, brother-in-law of Bhaiya Lal armed with lathi were also standing near his cot. Upon being exhorted and chased by the informant and his nephew the assailants ran towards the tube well in the south where Manbahadur was sleeping. Jharihag with the object of causing his death struck Manbahadur on his neck with his "gadasa". Meanwhile Mahendra and Ram Samuch who were sleeping near Manbahadur also woke up and unsuccessfully tried to catch hold of the assailants. The appellants were clearly identified by the informant and the other persons present at the place of incident under the light of electric bulbs. Since the condition of both Manbahadur and Danbahadur was extremely precarious, the informant took them to the Sadar Hospital, Jaunpur where Manbahadur was declared dead. The motive for commission of crime cited in the F.I.R. was old enmity between the accused and Ram Sundar, father of Manbahadur and Danbahadur who was doing pairvi on behalf of Ram Lakhan, an accused in the case of murder of one Indrapal alias Bijli, real brother of A2 and A3, Bhaiya Lal and Hira Lal.

On the basis of the written complaint which was scribed by an unknown person whom the informant had met in the hospital, on his dictation, Case Crime no. 178 of 1989 under Sections 147, 148, 149, 307 and 302 I.P.C. was registered at police station-Buxa, district-Jaunpur on 10.5.1989 at 5:55 P.M. against the appellants and one Baba. The chek F.I.R. (Ext.Ka-10) and the G.D. entry (Ext.Ka-11) were prepared by constable Prem Nath. Although the investigation of the case was entrusted to Sri Jagannath Tiwari, S.O. police station-Buxa but on his instructions it was PW6, Bhullan Singh, who was posted as Sub-Inspector in police station-Buxa at the relevant point of time, commenced the investigation on 10.5.1989 and reached the place of occurrence in village Velapar and collected blood stained and plain soil from the spot where Danbahadur was attacked, blood from the cord of the cot on which the deceased Manbahadur was assaulted by Babu Ram while he was sleeping and also took possession of blood stained clothes of the injured Danbahadur in the presence of the witnesses and prepared recovery memos (Ext.Ka-6, Ext.Ka-7, Ext.Ka-8 & Ext.Ka-9) respectively thereof and obtained their signatures thereon. The inquest of dead body of the deceased Manbahadur was conducted in Sadar hospital Jaunpur by PW6 who prepared the inquest report (Ext.Ka-12) and the other related documents, photolash (Ext.Ka-13), Specimen seal (Ext.Ka-14), letter addressed to the Chief Medical Officer (Ext. Ka-15), Police Form-33 (Ext.Ka-16) and Police Form-13 (Ext.Ka17). He also prepared the site plan (Ext.Ka-18) at the instance of the informant after inspecting the place of occurrence.

After completion of investigation charge sheet (Ext.Ka-20) was submitted against all the accused. Since the offence enumerated in the charge sheet were triable by Court of session, the case was committed to the Court of session for trial of the accused and numbered as S.T. No. 333 of 1991 (State vs. Babu Ram Yadav and four others). The accused on being produced before the Court denied the charges framed against them and claimed trial.

The prosecution in order to prove its case against the accused examined PW1 Ram Sundar Yadav, PW2 Danbahadur, PW3 Mahendra Yadav, PW4 Dr. Ram Awadh Yadav, PW5 Dr. D. Mandal, PW6 Bhullan Singh and PW7 Aftab Alam, S.O. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and stated that they had been falsely implicated due to enmity between the parties. The accused further examined DWI Rambriksh Rai, S.I. and DW2 Bhalchand Mishr for dislodging the claim of the prosecution that the investigation of the case was conducted by PW6 Bhullan Singh, S.S.I. and for proving that the entire investigation of the case was conducted by DW1 Rambriksh Rai and thereby rendering the prosecution story doubtful.

Sri V.P. Srivastava, learned senior counsel for the appellants has submitted that the F.I.R. in this case appears to be ante timed. The incident having taken place in the early hours of 9/10.5.1989 and there being no reliable proof of any source of light at the place of occurrence, there was no possibility of the co-called eye witness including the injured witness Danbahadur, PW2 of either seen the incident or identified the assailants. The prosecution version that the place of incident was illuminated by three electric bulbs does not inspire any confidence in the absence of there being any evidence indicating that at the relevant point of time the power supply was on. Considering the distance between spots where the witnesses, injured and the deceased were sleeping, it was not possible for the so-called eye witnesses to identify the assailants. Moreover there being no evidence that despite being allegedly armed with lathi either Bhaiya Lal or Hira Lal (A2 & A3) had assaulted either the injured or the deceased with their weapons which appears to be quite unusual and abnormal for a person who joins an unlawful assembly armed with weapons and goes to the place of incident for prosecuting a common object of committing a preplanned or premeditated crime to remain a silent spectator to the happenings around him. The peculiar facts and circumstances of this case strongly suggest that A3 and A4 who at the time of incident were young boys aged about 25 and 15 years respectively were falsely implicated in the present case due to enmity between the informant and the prosecution witnesses and father of A2 and A3. The prosecution claim that the inquest in this case was conducted by PW7 stands totally falsified in view of the evidence of DW1 who was examined on behalf of the defence and who proved that inquest was conducted by him and he prepared the inquest report and other related documents at the time of inquest and hence appellant's conviction on the basis of such tainted and biased investigation can not be sustained.

Sri V.P. Srivastava, learned senior counsel appearing for the appellants has further submitted that as far as the convictions of the appellant no. 1, Babu Ram Yadav under Section 302/149 I.P.C., Jharihag, appellant no. 4 under Sections 302 I.P.C. and Bhaiya Lal and Hira Lal, A2 & A3 under Sections 147, 307/149 and 302/149 are concerned the same are absolutely unsustainable. There is no evidence on record even remotely indicating that the murder of Danbahadur was either preplanned or premeditated and this fact finds support from the manner in which the two victims were assaulted and the role assigned to each of the appellants by the prosecution witnesses of fact in their depositions made before the trial court.

Per contra, Sri J.K. Upadhyay, learned A.G.A. has submitted that the conviction of the appellants is based upon cogent evidence and the sentences awarded to the appellants are proportionate to the offences committed by them. The prosecution case as spelt out in the F.I.R. stands fully corroborated from the evidence of three eye witnesses and the occular version finds further corroboration from the medical evidence on record. The impugned judgement and order are based upon relevant considerations and supported by cogent reasons and hence require no interference by this Court, this appeal lacks merit and is liable to be dismissed.

We have very carefully considered the submissions made by learned counsel for the parties, scanned the entire lower court record and perused the law reports cited by learned counsel for the appellants before us.

The twin questions, involved in this criminal appeal for our consideration inter-alia are that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts and if so whether on the basis of the evidence on record the conviction of the appellants for the offences enumerated in the impugned judgement and the sentences awarded to them can be sustained or is liable to be modified.

The challenge to the authenticity of the F.I.R. in this case by the learned counsel for the appellants on the ground that the same is ante timed is without any basis. From the evidence of PW1, it emerges that after the incident which had taken place at about 4:00 a.m. on 9/10.5.1989, in which the complainant's nephews, Danbahadur and Manbahadur had received severe injuries, PW1 had taken both the injured to the Sadar Hospital, Jaunpur and reached their on 4:45 a.m. and after waiting there for about 15 minutes he had gone to police station-Buxa on a jeep while injured Danbahadur was rushed to B.H.U. for treatment and it had taken him about 20-22 minutes to reach Police Station-Buxa where he had met the police officer on duty and tendered to him the written complaint of the occurrence which was registered on 10.5.1989 at police station-Buxa at 5:55 a.m. as case crime no. 178 of 1989. Learned counsel for the appellants has referred to the evidence of Ram Briksh Rai, retired Sub-Inspector Police who was examined as DW1 for buttressing his argument that the F.I.R. in this case is ante timed. It is true that DW1 in his evidence has stated that he was posted at police out-post Shakarpur, police station-Kotwali, Jaunpur on 8.5.1989. On that date at about 7:30 a.m. a ward boy of Sadar Hospital had informed police station-Kotwali, Shakarpur that injured Manbahadur who had been admitted for treatment in Sadar Hospital, Jaunpur in the morning on 10.5.1989 had died on 4:50 a.m. The aforesaid information was recorded at G.D. no. 12 and thereafter DW1 along with constable Udai Narain Singh and constable Vijay Singh had reached the mortuary and after taking possession of the dead body he had held the inquest and prepared the inquest report as well as the other related documents in his own hand writing. Learned counsel for the appellants has referred to the inquest report and submitted that the same does not contain the number of case crime which unequivocally suggests that the F.I.R. was not in existence till the conclusion of inquest. However, the aforesaid submission appears to be without any basis. It has come in the evidence of PW1 that the F.I.R. of the incident was lodged at Police Station-Buxa and not at Police Station-Kotwali while the inquest has conducted by DW1 who was posted at Shakarpur police out post within the jurisdiction of the police station-Kotwali, Jaunpur and hence the non mention of the case crime number in the inquest report which under the circumstances of the case appears to be quite natural and does not in any manner create any suspicion that the F.I.R. was ante timed. The defence by examining DW1 has helped the cause of the prosecution by filling up loop wholes in the prosecution case which may have felicitated the defence in highlighting the lacuna in investigation.

We find that there is no dispute about the fact that the incident had taken place at about 4:00 A.M. on 9/10.5.1989 within the premises of the house of the informant and his other relatives. The occurrence can be conveniently divided into two different parts. The first part involved the assault on Danbahadur son of Ram Sundar by A1, Babu Ram with his "tegara", while other accused namely, A2 Bhaiya Lal, A3, Hira Lal and A4, Jharihag and non appellant Baba armed with hasia stood near his cot while he was sleeping on his cot on which a mosquito net was fixed. Although PW2 claims that he was woken up by some commotion around his bed before being attacked by A1, Babu Ram with his "tegara" on the neck and he cries for help awakened PW1, Ram Sundar Yadav and his other relatives who were sleeping nearby and on waking up PW1 claims that he saw A1, Babu Ram attacking Danbahadur with his "tegara" on which he and other person present there exhorted to catch the assailants whereupon they swiftly retreated from the place of incident and started running towards the tube well in the South where Jharihag, A4 dealt a blow to Manbahadur who was sleeping there on his neck while he was being chased by the informant and the other witnesses and in the meantime Mahendra Yadav, PW3 and Ram Sundar who were also sleeping nearby Manbahadur also woke up and recognized the accused under the light of three electric bulbs with which the entire place was illuminated. The assault on Manbahadur constitutes the second part of incident.

PW1, Ram Sundar Yadav apart from reiterating the facts stated by him in the written report (Ext.Ka-1) also proved the same and deposed that the name of his father was Anoop who had three brothers, Ram Murat, Ram Kishore and Ram Varesh of whom Ram Varesh alone was alive on the date of the incident and the informant PW1 had three brothers, Ram Samuch, Ram Sundar and Ram Inder. Ram Sundar had two sons Manbahadur (deceased) and Danbahadur (injured). Informant's pattidar Raghunath had three sons, Thothideen, Jayanti and Motilal. A1, Babu Ram is the son of Dhodhi Deen Yadav, A2, A3, Bhaiya Lal and Hira Lal are both sons of Jayanti, who has two brothers. A4 Jharihag is the resident of same village as the informant but owes his allegiance to the group of accused and non appellant Baba is the real son-in-law of Jayanti. Before the incident in question had taken place one Bijli alias Indrapal, real brother and Hira Lal, A3 was murdered and in the case of murder of Bijli alias Indrapal, Ram Lakhan and Achhey Lal, both sons of Ram Kishore, informant's real uncle were nominated as accused and sent to jail. Since the informant's brother Ram Sundar, father of Manbahadur and Danbahadur was doing pairvi on behalf of Ram Lakhan and making efforts for securing his release on bail. Bhaiya Lal and Hira Lal (A2 & A3) had become enemical towards him and on account of the aforesaid enmity they had committed the crime in question. PW1 in his cross-examination(page 21 & 22 of the paper book) stated that he was awakened on hearing hue and cry raised by Danbahadur and on waking up he saw the accused A1, Babu Ram armed with "tegara", Jharihag A4 armed with gadasa, Bhaiya Lal A2, Hira Lal A3 and Baba standing near the mosquito net of Danbahadur. He then stated that the blow on the neck of Manbahadur had already been dealt before he had woken up and when he woke up he saw Danbahadur running his "tegara" over the neck of Danbahadur and then he and Rajbahadur challenged the assailants on which they ran towards the pumping set where Jharihag A4 struck a blow on the neck of Manbahadur with his "gandasa". In the meantime, on hearing the noise Mahendra Yadav, PW3 and Ram Samuch also woke up but meanwhile the accused had escaped towards East from the South of the tube well. Ram Samuch and Mahendra had also chased the accused and at the time of incident the entire place was illuminated from the light of three electric bulbs. PW2, Danbahadur in his examination in chief supported the prosecution case vis-a-vis the assault made by A1 Babu Ram on him and the presence of other appellants near his cot as admittedly after being assaulted he had become unconscious. Although his evidence does not inspire much confidence as in view of the nature of the injury inflicted on him it was unlikely that he could have identified his assailants.

PW3, Mahendra Yadav is the witness of assault made by A4, Jharihag on Manbahadur with his "gandasa". As far as the attack on the injured Danbahadur is concerned the evidence of PW3, Mahendra Yadav is of no consequence as he has himself stated in his examination in chief that he woke up on hearing the noise made by his family members and on being awakened he saw the accused Jharihag A4 assaulting Manbahadur with gadasa with the intention of causing his death. He also deposed that he had seen Babu Ram, A1 armed with "tegara". A2, A3 and Baba armed with lathies near Jharihag and in the meantime Raj Bahadur and Ram Sundar had reached the place where Manbahadur had been attacked and told him that the aforesaid accused had caused injuries to Danbahadur also and whose condition was serious.

All the three witnesses of fact examined on behalf of the prosecution were cross examined by the defence counsel at great length but they stuck to the version of incident as narrated by them in their respective examinations in chief. The prosecution failed to elicit anything from them which could either discredit their credibility or render their testimonies unreliable. PW4, Dr. Ram Awadh Yadav who had conducted the postmortem of the dead body of the deceased Manbahadur, proved his postmortem (Ext.Ka-4) had noted only one anti-mortem injury on the dead body of the deceased indicates only one incised wound of 3.5 cm x 0.5cm on the front of the neck right side 3 cm above from the medial end of right clavicle with profuse bleeding from carotid muscles of right side of neck. PW4, Ram Awadh Yadav deposed that according to his opinion the deceased had died due to shock and hemorrhage as a result of antimortem injury. He further opined that the deceased could have died on 9/10.5.1989 at about 4:00 a.m. and the incised wound which caused the death of the deceased Manbahadur could have been caused by a knife.

Dr. D.Mandal who had examined the injured Danbahadur and prepared his injury report (Ext.Ka-5) on 10.5.1989 at about 4:45 a.m. was examined as PW5 and he testified that the injury of Danbahadur could be caused by a sharp cutting weapon and the condition of the injured was serious at the time of his medical examination. He however, stated that he was not in a position to give any definite opinion whether the injury of injured Danbahadur could have been caused by "tegara".

S.S.I., Bhullan Singh who had investigated the case on the instructions of Sri Jagan Nath Tiwari, S.O., Buxa who had been entrusted with the investigation of the case was examined as PW6 proved recovery memo of blood stained and plain soil from the spot where deceased Manbahadur had been assaulted (Ext.Ka-6), recovery memo of blood stained cloths of injured Danbahadur (Ext.Ka-9), inventories of bulbs (Ext.Ka-2 and Ext.Ka-3), recovery of blood stained cord of the cot on which the deceased Manbahadur was sleeping (Ext.Ka-8). He also proved the chek F.I.R. (Ext.Ka-2) and the G.D. entry (Ext. Ka-11) which were in the hand writing of constable Prem Nath by deposing that he was very well acquainted with the hand writing of Prem Nath.

PW6, S.S.I., Bhullan Singh who claims to have conducted the inquest of the dead body of the deceased Manbahadur although the defence has seriously challenged his claim in this regard proved the inquest report (Ext.Ka-12) and the other related documents, photolash (Ext.Ka-13), Specimen seal (Ext.Ka-14), letter addressed to the Chief Medical Officer (Ext. Ka-15), Form-33 (Ext.Ka-16) and challan lash (Ext.Ka17). He also deposed that he had dispatched the dead body of the deceased after sealing the same for postmortem along with relevant documents.

PW7, Aftab Ahmad, Inspector Incharge, police station-Gyanpur, district-Sant Ravidas Nagar who had conducted further investigation in the matter and endorsed the conclusion of the earlier Investigating Officer who submitted charge sheet against all the accused in this matter, he in his evidence enumerated the different steps taken by him while conducting further investigation in the matter.

Thus as far as the three eye witnesses produced by the prosecution are concerned, PW1, Ram Sundar appears to be the only eye witness who had seen the entire episode whereas PW2, Danbahadur injured witness is the eye witness of his own assault alone and PW3, Mahendra Yadav is the witness of murder of Manbahadur but all the three witnesses have uniformily deposed about the presence of all the accused at the place of occurrence armed with the weapons assigned to them in the F.I.R.

However after having very carefully scanned the oral as well as the documentary evidence on record, one thing which stands out is that although five persons were nominated as accused in the F.I.R. and each of them is said to armed with a deadly weapon but strangely except A1, Babu Ram and A4, Jharihag, no overt act of any kind has been attributed to the other accused including A2 and A3 by any of the prosecution witnesses. PW1, Ram Sundar merely stated that when he woke up he saw A1, Babu Ram assaulting Manbahadur with his "tegara" while A2, A3, A4 and non appellant, Baba who were armed with gandasa and lathies were merely standing near the cot on which Danbahadur was sleeping. As far as the assault of deceased Danbahadur is concerned the two eye witnesses PW1 and PW3 have again deposed in their evidence that A4, Jharihag had dealt a blow on the neck of Manbahadur with his 'gadasa' while no overt act of any kind has been assigned to the other co-accused who according to the PW1 and PW3 were that time near A4, Jharihag. We are of the view that as far as the participation of A1, Babu Ram and A4, Jharihag in the commission of assaults on Danbahadur and Manbahadur and the presence of Bhaiya Lal, A2 and Hira Lal, A3 is concerned the same stands proved from the evidence led by the prosecution. The ocular version further also stands corroborated from the medical evidence. However, it is difficult for a prudent mind to accept that although A3 and A4 accompanied A1 and A4 along with deceased accused Baba to the place of occurrence armed with lathies yet remained silent spectators to the happenings around them although, if the prosecution story is to be believed A2 and A3 had the strongest motive to commit the crime. There is no evidence on record against them even remotely proving that they had either exhorted A1 and A4 to kill the victim or cause any injury to either of the two victims. Even while they were being allegedly chased by PW1, PW3 and their other relatives, there is no evidence showing that they had either used their lathies against the persons who were chasing them or even threatened them and in for the aforesaid reason, vis-a-vis A3 and A4.

The issue which now arises for our consideration is that whether in view of the distinct roles assigned to the different appellants by the prosecution witnesses and the evidence on record whether A1, Babu Ram, A2, Bhaiya Lal and A3, Hira Lal are liable to be acquitted of the charge under Section 302 read with Section 149 I.P.C. and whether the conviction of A4, Jharihag under Section 302 I.P.C. is liable to be converted under Section 304(i) or (ii) I.P.C. Another matter which requires our attention is that whether the sentence awarded to the appellant nos. A2, A3, (Bhaiya Lal and Hira Lal) for their conviction under Section under Section 307/149 I.P.C. is liable to be modified in view of the foregoing discussion.

It is not in dispute that the injured Danbahadur and the deceased Manbahadur were dealt single blows each by their respective assailants. From the evidence of PW-1 and PW-2, it transpires that while Babu Ram had assaulted the injured Danbahadur with his "tegara" the evidence of PW1 and PW3 indicates that the deceased Manbahadur had been dealt a blow by A-4, Jharihag with his "gadasa". From the evidence of the eye-witnesses and the facts and circumstances of the present case, it appears that after A-1 had attacked injured Danbahadur with "tegara" and the noise made by him had awakened PW-1 and his other relatives who were sleeping nearby and who on being awakened and seeing injured Danbahadur had challenged the assailants on which all the accused ran desperately to escape. It appears that on account of the noise made by PW-1 and his other relatives, Manbahadur who was sleeping near the tubewell also woke up and not being aware about what had happened, he on seeing A-4 Jharihar running towards him in a reflex action tried to catch him and A-4 Jharihag in order to facilitate his escape dealt a blow to Manbahadur which struck him on his neck and he fell down. The solitary blow stuck by A-4 Jharihag to the deceased Manbahadur which caused his death appears to be an isolated act of A-4 Jharihag alone and the same cannot be treated as premeditated or pre-planned or as an act done on behalf of all the accused in the execution of a common object. Had the appellants entered into the house of the informant with the plan to commit the murder of both Danbahadur and Manbahadur, it would have been safer for them to have split into two groups and assaulted both the victims simultaneously. According to the prosecution case both the so-called targets at the time of assault were sleeping and it would have been much more easier for the appellants to have sent the two victims to eternal sleep by assaulting them separately rather than taking them one by one and thereby exposing themselves to the risk of being seen and identified by the other relatives of the victim who were sleeping nearby in the event of their waking up by a possible hue and cry made by the first victim Danbahadur in case he was awakened by the commotion made by the movement of the appellants around his cot on which he was sleeping before he was assaulted and that is exactly what had happened in the present case. It appears that the appellants had entered into the house of the informant with the intention of committing the murder of Danbahadur but before the first blow could be dealt by A4 Jharihag, he woke up on account of commotion around his bed and on noticing the assailants he made a noise while at the same time Baburam stuck him with his "tegara" on his neck, which awakened the informant and his other relatives sleeping near the place of incident forcing the assailants to retreat from the place of incident and the deceased became the victim of A4 not on account of any premeditated or pre-planned act but merely because he came in the way of A4 Jharihag who was trying to escape from the crime scene.

Thus in view of the aforesaid reasons we hold that the convictions of A1 Babu Ram, A2 Bhaiya Lal, A3 Hira Lal under Section 302 read with Section 149 IPC and of A4 Jharihag under Section 302 IPC are unmerited and unsustainable and hence scored out instead A4 alone is convicted under Section 304(i) IPC The sentence of life imprisonment imposed on A4 Jharihag is also palliated to R.I. for 10 years R.I. with a fine of Rs. 10,000/-and in default of payment of fine 6 months additional R.I. Appellants A1 Babu Ram, A2 Bhaiya Lal and A3 Hira Lal stand acquitted of the charge under Section 302 read with Section 149 I.P.C.

The conviction of A1 Babu Ram under Sections 148 and 307 I.P.C., A4 Jharihag under Sections 148, 307/149 I.P.C. and A2 and A3 Bhaiya Lal and Hira Lal under Sections 147, 307 read with section 149 I.P.C. stands affirmed.

Considering the peculiar facts and circumstances of the case and the admitted factual position that the appellant nos. A2 and A3 (Bhaiya Lal & Hira Lal) had not caused any injury to any of the two victims, we reduce the sentence of 10 years simple imprisonment and a fine of Rs. 10,000/- and in case of default of payment of fine 6 months additional simple imprisonment awarded by the trial court for their conviction under Section 307/149 I.P.C., to 2 years simple imprisonment and a fine of Rs. 2,000/- and in case of default of payment of fine to one month additional simple imprisonment.

The sentences awarded by the trial court to A1 Babu Ram and A4 Jharihag for their conviction under Sections 307 and 307/149 I.P.C. respectively are maintained.

Since the appellants A1 Babu Ram, A2 Bhaiya Lal and A3 Hira Lal are on bail, their bail bonds and surety bonds are canceled. Appellants A1 Babu Ram, A2 Bhaiya Lal and A3 Hira Lal are directed to surrender immediately before the trial court. If they fail to surrender, the trial court is directed to get the appellants A1 Babu Ram, A2 Bhaiya Lal and A3 Hira Lal arrested and sent them to jail. The appellant A4 Jharihag is in jail.

All the appellants shall remain in jail till they serve out remaining part of the sentences awarded by the trial court by means of judgment dated 9.7.2008 and as altered by us by means of this judgment.

The appeal stands decided as above.

Dt.12/08/2016 Faridul.

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