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3. The prosecution version of the occurrence may now be briefly stated. The two plots nos. 2245 and 2246 which have been amalgamated belong to Banke Singh son of Jang Bahadur (P.W. 1) and Bal Govind Singh (PW. 6) as their kasht (cultivation) and they claimed to have been in possession all along. Three days prior to the occurrence in question which took place on October 23, 1963 Banke Singh had ploughed and harixnved the land. On the date of occurrence at 6 a.m. Banke Singh and Bal Govind went to the field to sow jow and korse crops. As they were about to finish the sowing operations Rajkishore Singh came there and suggested that sowing should be done only after the settlement of the dispute. Bal Govind suggested that a panchayati should be called to decide this matter. Rajkishore thereupon went to call the panchas. Bal Govind also asked Banke Singh to call Radha Kislien from village Santhi and Raj Ballabh Dubey who was upmukhia (who lost his life in the occurrence) from village Basantpur. Kashi Dubey (P.W. 3) and Balram Dubey (P.W. 6) and one Kapil Dev Tiwari. were with Raj Ballabh Dubey at that time. On being apprised of the controversy Raj Ballabh Dubey agreed to act as pancha. He took a blank piece of paper and a pencil with him and also persuaded the three persons mentioned above to accompany him. On arrival at the spot Bankey Singh found his uncle and Radha Kishan near the eastern side of the disputed field and Rajkishore Singh along with 40 or 50 persons variously armed towards the southwest corner of the field. An altercation appeared to be going on between the two parties. On Raj Ballabh Dubey's arrival Rajkishore Singh enquired from him as to why he had come there, to which Raj Ballabh Dubey replied that he had come to do panchayati. Rajkishore retorted that the field belonged to him and there was no question of a panchayati. This being refuted by Raj Ballabh Dubey there was exchange of hot words. Thereupon Rajkishore Singh and his partymen started throwing brickbats with the result that Bal Govind, Raj Ballabh Dubey and others began running towards north east. They were chased by the party of Rajkishore Singh. Raj Ballabh Dubey appears to have lagged behind. Raj kishore Singh gave him a bhalla blow in the stomach. This was followed by another bhalla blow by Bindheyachal Singh on the left side of his stomach. Raj Ballabh Dubey as a result fell down in the field of Ram Chandra Singh. Thereafter Ram Bachan Bhar gave a blow on his chest. In consequence of these blows Raj Ballabh Dubey died. Kapil Dev Tiwari protested but he too was assaulted by Dhup Narayan Singh and Bhikari with lathis felling him down. On protest being raised by Balirarn against this high-handedness he also received lathi blows. Kripal, Dudhnath, Balirarn and Suresh thereafter struck him with lathis and felled him down. Thereafter Rajkishore Singh, Bindheyachal Singh, Bhikari and Dhup Narayan Singh tied Raj Ballabh Dubey in a green chadar belonging to him and carried him away tied on a lathi towards the river Sarjoo. They threw the dead body into the river. The dead body was, however, not recovered in spite of search with the result that no post-mortem examination could take place.

10. The next question which requires consideration is that of guilt of the individual accused persons. The trial court found Raj Kishore, Bindheychal Singh and Ram Bachan guilty of the murder of Raj Ballabh Dubey and liable to be punished under Sections 302/34, I.P.C. The charge under Sections 302/149, I.P.C. according to that court was not made out against all the members of the prosecution party though one under Sections. 326/149 was clearly established. The High Court also upheld the guilt of the three appellants Raj Kishore, Bindheyehal Singh and Ram Bachan Bhar under Sections 302/34, I.P.C. The evidence of Bankey Singh (P.W. 1), Kashi Dubey (P.W. 3), Bal Govind Singh (P.W. 6) and Balbhadra Singh (P.W. 10) was relied upon for this finding. This evidence, in qur view, fully supports the conclusions of the two Courts below and no ground for interference in this appeal is made out. The appellant's learned Counsel drew our attention to the dying declaration of Bal Ram Dubey (P.W. 8), Exhibit J, recorded by Shri R. K. Singh on the 24th October, 1963 in which he imputed his ov(sic) injuries to lathi blows by Bindheychal Singh. According to the counsel this at least throws a serious doubt on Bindheyachal Singh's complicity in the murderous assault on the deceased by bhalla as deposed to by other witnesses. This submission, though attractive on first impression, is unacceptable on deeper thought on the facts and the conclusions of the courts below. The trial court did not rely on this dying declaration. The Magistrate who had recorded it was not examined as a witness and according to its contents Bal Ram Dubey was not fully conscious at that time. Now this witness is 75 years of age and had received six injuries as stated by P.W. 19, Dr. Sahai. One injury was grievous and it had resulted in fracture of humerous bone. He was medically examined at about 1 p.m. on the 24th October. The doctor of course does not seem to have recorded in his injury report that he was unconscious but that does not necessarily mean that later, at about 2.35 p.m. when his dying declaration was recorded, his condition could not have become worse. But this consideration apart, the High Court has found sufficient evidence even after excluding the testimony of Balram Dubey (P.W. 6) on which to sustain the finding that Rajkishore, Bindheyachal Singh and Ram Bachan Bhar had assaulted Raj Ballabh Dubey with bhallas with the intention of killing him. Incidentally it may be pointed out that Ram Narayan Dubey, brother of the deceased, had more than once filed written applications in the court of the Magistrate seized of the case, stating that Bal Ram Dubey and Kapil Dev Tiwari had been won over by the accused. Two such applications are dated 3rd February, 1964 (Ex. 14) and 20th June, 1964 (Ex. 14/1). These applications were filed in connection with the insistence of the accused to have them identified by Balram Dubey and Kapil Dev Tiwari. As Balram Dubey identified only Ram Bachan Bhar on 24th June his evidence was discarded. On considering all the circumstances we do not think that on the basis of Ex. J. alone it is possible to discard the evidence of the two eye-witnesses which has been accepted by both the Courts below. At this stage we may also appropriately dispose of the appellants' argument seriously pressed before us that in spite of repeated demands by the accused test identification parades were not held with expedition and this has prejudiced the appellants. The first application, to which our attention was drawn in this connection, was put up before the Sub-Divisional Officer dealing with this case on 2nd January, 1964, in which it seems to have been prayed that the accused persons should not be produced in court on 3rd January, 1964 and also not till the test identification parade was finished. This application was, however, not pressed on behalf of the accused. On 3rd January, 1964 the accused were produced in custody and the court save a direction to expedite the test identification parades. It appears that later the accused started pressing for immediate test identification parades. But in view of the fact that there was, a counter charge of some of the witnesses having been won over and the fact that the accused were apparently also known to the identifying witnesses test identification parade in this case can hardly be of any use. Kapil Dev Tiwari, the other identifying witness died a natural death before he could appear as a witness in the case. So the test identification by him which is not a substantive piece of evidence but can only be used as corroborative evidence could not be of much evidentiary value. What has just been stated clearly shows that the identification parades are of little value to the prosecution and there is no question of the accused having been prejudiced by the late identification parades. We are not relying on them at all. The appellants' suggestion some what casually made during the course of the arguments that Bindheyachal Singh was not capable of wielding bhala with his right hand, which argument was not accepted by the trial Court, appears to us to be without foundation.