I.P. Singh, J.
1. This criminal appeal has been preferred by Bujjha, Sukkhu, Banshraj, Prasad, Ram Karan and Manna alias Bhan against the judgment and order of Sri Rajeshwari Prasad, III Additional Sessions Judge, Azamgarh dt. 28-9-77 passed in S. T. No. 327 of 1975 convicting and sentencing the appellants as follows:
Banshraj under Section 302 1. P. C. to life imprisonment, under Section 148 I. P. C. to three years R. L, under Section 307 1. P. C. to ten years R. I., under Section 323/149 1. P. C. to three months R. L, under Section 426 I. P. C. to three months R. I., under Section 447 I. P. C. to three months R. I. and under Section 452 I. P. C. to three years R. I.
Sukkhu under Section 147 1. P. C. to one year R. L, under Section 323 1. P. C. to one year R. I., under Section 426 1. P. C. to three months R. I. and under Section 447 I. P. C. to three months R. 1. Bujjha, Prasad, Ram Karan and Manna alias Bhan under Section 147 I. P. C. to one year R, 1., under Section 323/149 I. P. C. to one year R. I., under Section 447 I. P. C. to three months R. 1. under Section 426 I, P. C. to three months R. I.
2. All the sentences of each of the appellants were ordered to run concurrently.
3. The prosecution case is that in village Dewait, P.C. Gambhirpur, District Azamgarh the house of Budhai complainant, P.W.6 on the one hand and that of Bujjha appellant on the other are situate near each other while the house of other three appellants Ram Karan, Prasad and Munna alias Bhan is situate close towards north east of the house of Bujja appellant. It is alleged that Baljore and Bujjha were cousins. Banshraj and Sukkhu appellants are sons of Bujjha appellant. Prasad, Ram Karan and Munna alias Bhan are sons of Baljore. In this way all the appellants are related to each other. On the other hand the family of Budhai complainant consisted of his wife Gujrati, his son Jauhori P.W.I, the deceased son Mool Chand and a daughter Gilasia.
4. Shyamdeo P.W.2, Bechan P.W.3, Ram Nath P.W.5 live in the neighbourhood.
5. According to the prosecution Bujjha appellant had raised his 'Kotha' on its old foundation on the east south corner of his house. He wanted to open a door in the new Kotha towards east. Chak of Smt. Gujrati, wife of Budhai complainant is situated 3 or 4 paces away towards east. It is alleged that Budhai had approached Bujjha appellant to desist from opening the door towards their chak land. This request was made because according to the prosecution Budhai entertained apprehension that if the said door is opened towards their chak land then Bujjha might encroach into the chak land. However, this request of Budhai was turned down by Bujjha. As a counter Budhai had raised a wall by the side of the western end in his chak in an effort to save his chak land.
6. Further allegation is that on 31-3-74 at about 8 A.M. all the appellants started pulling down the newly constructed wall of the complainant. Smt. Gujrati wife of the complainant went there and checked them from demolishing the same. However, she was attacked and beaten by Bujjha appellant with Trishul and Sukkhu appellant with a lathi. She raised an alarm which attracted Budhai P.W.6, his two sons Mool Chand, deceased and Jhauhori P.W.I, daughter Gilasia and a few outsiders namely Shyam Deo P.W.2, Bechan P.W.3 and Ram Nath P.W.5 to the spot. Mool Chand had protested to the appellants as to why they had beaten their mother. On this Bujjha and other appellants shouted that he (Mool Chand) be beaten. Banshraj appellant who was armed with a spear chased Mool Chand who ran away into his Osara. Banshraj appellant trespassed into the said Osara and attacked Mool Chand with his spear when Mool Chand had turned to have a look at Banshraj to ascertain whether he was still chasing him or not. As a result of a spear blow Mool Chand fell down. Jauhori P.W.1 the brother of Mool Chand protested to the action of Banshraj, at this Banshraj appellant gave a spear blow to him and he also was injured. Mool Chand expired soon after. Incoming witnesses challenged the appellants at which they took to their heels. Blood had fallen down at places where Mool Chand deceased and Jhauhori P.W.I had been assaulted with spear.
7. Budhai complainant P.W.6 dictated the report of this incident to Laljit Yadav and then he accompanied by Jhauhori P.W.I, Bechan P.W.3 and others went to P.S. Gambhirpur which is ten miles away, there the said report was handed in. On the basis of the same chick report was prepared.
8. Jhauhori P.W. 1 injured was examined by Dr. R. N. Tiwari P.W.8 Medical Officer, District Hospital, Azamgarh on 31-3-74 at 12.30 P.M. Jhauhori had sustained incised punctured wound 1 1/2' X 1/4' chest cavity deep on front of right side of chest lower part 3' below Rt. Nipple. Margins clean cut, gaping present no fresh bleeding or gaping seen, patient fully conscious. Pulse 82 p.m., B.P. 110/70 in the state of shock. The duration was fresh and the injury was caused by sharp edged pointed weapon like spear.
9. Post-mortem examination of Mool Chand alias Mullu, deceased was conducted by Dr. R. N. Tiwari P.W.8, Medical Officer District Hospital, Azamgarh on 1-4-74 at 4 p.m. Probable time since death was about 11/3 days. The duration fits in with the alleged hour of the occurrence. The external examination revealed the following ante-mortem injuries on his person.
Incised punctured wound 1 1/2' x 1/2 chest cavity deep infornt of left side chest 1' below left nipple. Margins clean cut. Caused by sharp edged pointed weapon like spear.
The internal examination revealed the existence of punctured wound 1/2' X 1/2' on anterior aspect of left ventrical 3 oz of digested food was found in the stomach small intestine was empty large intestine contained gases and faecal matter, Bladder was % full with urine. In the opinion of the Doctor the death was the result of shock and haemorrhage as a result of the ante-mortem injury. The injury was sufficient in the ordinary course of nature to cause death.
10. Smt. Gujrati was examined by Dr. G. N. Gupta, Superintendent, District Hospital, Azamgarh (P.W.7) on 2-4-1974 at 6.30 p.m. She had suffered two abraded contusions and one contusion on the back and one abrasion on the right forearm upper part. All the injuries were simple and were about two and a half days old. This duration goes back to the alleged hour of the occurrence.
11. The appellants denied their participation in the incident. They pleaded that, in fact, a dacoity was committed at the house of Budhai complainant (P.W.6) and the injured persons had sustained injuries at the hands of the dacoits. They contended their false implication due to enmity with the witnesses and collusion with the police. They examined Ram Yagye Pandey Lekhpal, Chakbandi, as D.W.I and filed a few documents in their defence.
12. The prosecution examined, in all, ten witnesses including Jhauhori (P.W.I), Shyam Deo (P.W.2), Bechan (P.W.3), Ram Nath (P.W.5), and Budhai (P.W.6) as eye-witnesses of the occurrence. The learned Sessions Judge after appreciating the evidence on record and circumstances of the case, convicted and sentenced the appellants as already mentioned above.
13. It is to be noted that the appellants had availed themselves of the opportunity to lead evidence in defence. The suggested dacoity could not be an unknown fact in the village. Accordingly, had the dacoity really taken place, the appellants would not have been at a loss to find some one from the village to come forward and depose about the suggested dacoity having taken place. No witness was examined by the appellants in this connection. It is true that a suggestion was thrown to all the witnesses concerned that, in fact, a dacoity had taken place in the house of Budhai (P.W.6) and it was due to enmity that they were falsely implicated in this case with the collusion of the Police. Same suggestion was given to the Investigating officer, Yadunandan Prasad (P.W.9), that, though he had received information about the said dacoity, yet he had deliberately concealed the factum of dacoity, and, in order to implicate his enemies, he colluded with the complainant and other witnesses and falsely implicated the appellants in this case by showing that the occurrence had taken place during day time and not in the previous night. Of course, all the witnesses including the Investigating Officer concerned denied the above suggestions. At any rate, the Investigating Officer, who had inspected the locality and had prepared the site-plan, did not show any visible signs of dacoity in the shape of scattered house hold articles etc. As a matter of fact, no direct question was put to the Investigating Officer in this connection. In the circumstances, we do not find any substantial material on the record to indicate commission of the suggested dacoity.
14. We need not refer to the particular statement of the abovementioned eyewitnesses to show that all of them are inter-related. It is true that some of the witnesses, for example Jhauhori (P.W.I) tried to avoid admission of the said relationship, nonetheless, after having gone through the statements of all these winesses, we are of firm opinion that all of them are related to each other. Accordingly, learned Counsel for the appellants banking upon this fact, has argued that the witnesses being relation witnesses should not be relied upon, specially when the evidence on record indicates that many other villagers had arrived at the spot. For instance, Budhai complainant (P.W.6) has admitted in his cross-examination that at least 30-40 villagers had reached the spot before the appellants had run away. It is, therefore, argued that the prosecution had deliberately withheld production of independent witnesses who had reached the spot. The argument advanced is' that, in this background, no reliance should be placed on the abovementioned eyewitnesses. But it is well settled law that mere relationship inter se the witnesses, is no ground to reject their evidence outright. At best, their evidence is to be scrutinized with caution. However, there is nothing on record to suggest that the said relation witnesses, namely Shyam Deo (P.W.2), Bechan (P.W.3) and Ram Nath (P.W.5) have any direct enmity with the appellants which could prompt them to side the complainant Budhai (P.W.6). In this connection, learned Counsel for the appellant placed reliance on one document filed by the appellants which is a copy of the charge-sheet in case No. 347 of 1975 (with reference to the case under Section 332/506 I.P.C. dated. 14-5-1971) decided on 15-6-1975 : State v. Ram Subhag. It indicates that one Sohan Ram was the complainant and Ram Subhag and Bharat were accused while Sukkhoo appellant was a witness against them. The order paper is the copy of a statement of Sukkhoo appellant dated 21-10-1975 in the abovementioned case. Learned Counsel for the appellants failed to point out how Ram Subhag or Bharat were related to Budhai complainant or other prosecution eyewitnesses. Accordingly, the statements of the eye-witnesses do not merit rejection outright, but have to be looked into with scrutiny and caution.
15. Before we come to discuss the evidence of the eye-witnesses, it would be proper to deal with the alleged motive. The correctness of a site plan, so far as it shows the topography, is not challenged. It is, therefore, obvious that the houses of the appellants as well as Budhai (complainant) are situated close by and a space .of about four paces lies towards east of the house of Bujjha appellant. Beyond that to further east, is situate the chak land which stands in the name of Smt. Gujrati, the wife of Budhai complainant (P.W.6). According to the prosecution, Bujjha appellant had raised his Kotha in the old foundation of his previous demolished Kotha in the south eastern portion of his house which has its exits towards west. However, Bujjha appellant wanted to open a door in the newly constructed kotha towards east which would have faced the chak land of Smt. Gujrati. The prosecution allegation is that, for some reason, Budhai complainant (P.W.6) and other members of his family entertained the apprehension that once that new door would be established, then Bujjha appellant and other members of his family might interfere and encroach upon the said chak land. It is contended that labouring under the said apprehension Budhai had approached B ujjha with a request not to fix his door towards east. This request was turned down. In order to protect their chak land, Budhai had raised a wall on the western side of the chak so as to serve as a barrier between the house of Bujjha appellant and the chak of Smt. Gujarati and for that matter of Budhai complainant (P.W.6).
16. According to the prosecution the construction of the wall by Budhai complainant (P.W.6) was not relise (Sic) by Bujjha appellant. Further allegation of the prosecution is that, on the date of the occurrence i.e. 31-3-1974 at about 8,00 a.m., the appellants started demolishing the said wall, and when it was objected to by Smt, Gujrati, she was manhandled and the entire incident followed thereafter. The Investigating Officer found the demolished portion of the wall and it was depicted in the site plan as well. It is argued on behalf of the prosecution that this lends support to the prosecution version and squarely manifests motive on the part of the appellants and establishes how the entire incident was initiated.
17. However, the learned Counsel for the appellants argued that, admittedly, the prosecution version is that appellant Bujjha was out to open the door in the newly constructed Kotha facing was landlords the chak land of Smt, Gujrati or for that matter Budhai complainant (P.W.6) and they had desired that Bujjha appellant should not open that door. It is further argued that, admittedly, according to the prosecution version, Bujjha appellant had turned down that request. The argument is that this attitude of Bujjha appellant was not relished by Budhai complainant (P.W.6) and other members of his family. So. in fact, complainant Budhai had a motive to falsely implicate the appellants in this case and the opportunity to rope them in was provided by the dacoity which had taken place in the house of Budhai complainant (P.W.6) in the previous night.
18. Though the above argument appeals to be well knitted, but we do not find any substance in it. The theory of suggested dacoity has already been turned down by us. Moreover, if Bujjha appellant had turned down the request of Budhai, the matter seemed to end there and, Budhai complainant, in order to protect his own chak land, had, therefore, started raising the wall on the western side of his chak.
19. The prosecution allegation is that the appellants had demolished the said wall. As already discussed above it is argued that this finds corroboration from the circumstance that the Investigating Officer had found portion of the wall demolished. But the learned Counsel for the appellants had pointed out that Jhauhori P.W.I had admitted in his cross examination that said wall was Kacha. It is argued that either the portion of said Kacha wall could fall by itself or it could be the handi work of some unknown persons in the previous night. It is argued that at any rate said circumstances by itself is not sufficient to prove that said portion of the wall was demolished by the appellants at the alleged time. We agree with his contention. The best person to depose about it, according to the prosecution, was Smt. Gujrati but she was not examined. Jhauhori P.W.I has of course stated in his examination in chief that on the day of occurrence at about 8 A.M. all the appellants came and started demolishing the wall, but her mother (Smt. Gujrati) checked them. This statement gives an impression that al! this had happened in his presence. But in his cross examination he admitted that his father Budhai P.W.6 had not checked the appellants when they were demolishing the wall, because at that time he was inside his house and he had come out of the house along with him (Jhauhori). When he stepped out of the Osara he saw that his mother was being beaten with Trishul by Bujjha and Lathi by Sukkhu. In his examination in chief he stated that it was on the cries of his mother that he, his father, Budhai, his brother Moolchand deceased and his sister Gilasia and some villagers namely Shayamdeo (P.W.2), Bechan (P.W.3) and Ram Nath (P.W.5) arrived there. It is, therefore, obvious that he had not witnessed the demolition of the wall by the appellants.
20. Bechan (P.W.3) has stated in his examination in chief that he happened to reach the spot on hearing noise (shorgul) and saw the appellants demolishing the wall of Budhai, Budhai's wife (Smt. Gujrati) came and checked them but she was beaten by Bujjha and Sukkhu. He then goes on to narrate the rest of the incident. The noteable point is that according to him noise (Shor-Gul) was raised first and Smt. Gujrati had come later on when the appellants were already demolishing the wall and she objected to it. We wonder how and why the initial noise was raised which had attracted Bechan P.W.3 to the spot to see the demolition of the wall by the appellants. However, he stated in his cross-examination that when he happened to cast his first look towards the spot he saw marpit going on. If it was so then he had not seen the demolition of the wall.
21. Bechan (P.W.3) has stated in his cross-examination that Shyam Deo P.W.2 had reached the spot almost with him. If it was so then even Shyam Deo P.W.2 could not have seen the demolishing of the wall. Of course, he stated in his examination in chief that said wall was demolished by the appellants, but in his cross-examination he stated that when he first looked towards the spot he saw that the mother of Jhauhori (Smt. Gujrati) was being beaten. Thus he too had not seen that the wall was demolished by the appellants.
22. Ram Nath P.W.5 does not claim to have seen the wall being demolished.
23. Thus there is no reliable evidence worth the name that the portion of the wall in question was demolished by the appellants. Charges under Sections 426 and 447 I.P.C. therefore fail against all the appellants and with that the alleged motive also fails.
24. Jhauhori (P.W.1) is the injured witness. He is the son of Budhai complainant (P.W.6) and Smt. Gujrati. He stated in his cross-examination that, at the time of occurrence, he and his father Budhai, were inside their house. All of a sudden, they heard shouts of his mother, Smt. Gujrati and they came out of their house. He saw that his mother was being beaten with Trishul and Lathi. In his examination-in-chief he stated that Sukkhoo appellant had beaten her and her cries had brought him, his father, his brother Mool Chand, his sister Gilasia and other villagers, Shyam Deo (P.W.2), Bechan (P.W.3) and Ram Nath (P.W.5) to the spot. He further stated that Mool Chand (deceased) was ahead of all and he protested as to why they were beating his mother. At this, Bujjha another appellant shouted to kill him. At this, Banshraj appellant advanced with a Ballam to attack Mool Chand, Mool Chand ran back to his Osra, and when he was taking a turn to have a look at Banshraj as to whether he was still chasing him or not, Banshraj gave a Ballam blow to him, as a result of which he died. He further stated that when he tried to save Mool Chand, then Banshraj appellant gave a Ballam blow to him as well. At this stage, the incoming witnesses had raised shouts, at which all the appellants ran away. In his cross-examination, he stated that from the outsiders Ram Nath (P.W.5) was the first man to reach the spot.
25. Ram Nath (P.W.5) has stated that, at the time of occurrence, i.e. at about 8,00 a.m., after hearing the shouts, he had reached the spot first of all. He stated that his house is nearest to the spot. He saw Banshraj appellant chasing Mool Chand (deceased) with a Ballam into the Osra and when Mool Chand took E turn to have a look at Banshraj, the latter gave a Ballam blow to him. At this Jhauhori (P.W. 1 shouted as to what he (Banshraj) was doing and it was then that Banshraj gave a Ballan blow to Jhauhori (P.W.I) as well. He also confirmed that he had seen the mother c Jhauhori lying injured there and she was raisin alarm all the time. He added that, in fact, ht alarm had brought him to the spot.
26. Shyam Deo (P.W.2) and Bechan (P.W.3) had also reached the spot on hearing alarm of Smt. Gujrati. Both of them have corroborated Jhauhori (P.W.I) regarding the attack on Mool Chand and Jhauhori by Banshraj appellant with a Ballam. We do not believe their statements that they were in time to see marpit of Smt. Gujrati as well. They had reached the spot after Ram Nath (P.W.5). If Ram Nath had missed seeing marpit of Smt. Gujrati and had simply noticed her lying injured, then Shyam Deo (P.W.2) and Bechan (P.W.3) could not have seen her marpit.
27. Budhai (P.W.6) had also reached the spot with his son Jhauhori (P.W.I). He corroborated him regarding the incident, except that he did not say that Bujjha had given Tirshul blows to Smt. Gujrati. He confirmed that Sukkhu had given two lathi blows to her.
28. Learned Counsel for the appellants had tried to point out certain circumstances to shatter the credibility of these witnesses. It is pointed out that if Smt. Gujrati was injured at the time of the incident, then there was no reason why she should not have been examined by the doctor at the time her son Jhauhori was examined on 31-3-1974 at 12.30 p.m. or so. As already seen above, Smt. Gujrati was, in fact, examined after two days on 2-4-1974 at 6.30 p.m. It is argued that this delay in getting her medically examined was deliberate, and as a matter of fact, she was made either to self suffer or self inflict injuries found on her person at some stage subsequent to the incident. But we are not impressed by this argument.. It. is well established that Mool Chand had met an unnatural death. Jhauhori (P.W.I) was also injured. In this background, the prosecution did not stand in any need to procure injuries on the person of Smt. Gujrati. That would not have improved the prosecution case in any manner. Besides, the defence suggestion is that she had received injuries at the hands of the dacoits during the dacoity which took place the previous night. As a matter of fact suggestion was given to Dr. G. N, Gupta (P.W.7), who had medically examined Smt. Gujrati that the injuries found on her person could also be caused and sustained at about 2.30 a.m. in between the night of 30th and 31st March, 1974. In the background of this suggestion, we do not think it is open to defence to argue that the medical examination of Smt. Gujrati was delayed simply to procure self suffered or self inflicted injuries on her person.
29. It is further pointed out that whereas the evidence of the eye-witnesses, namely, Jhauhori (P.W.I) and Budhai (P.W.6) shows that Budhai complainant (P.W.6) had not witnessed the alleged demolition of the wall by the appellants, yet in the first information report lodged by him, he described that the appellants had come to the spot together armed with lathis and Ballam and had .started demolishing his wall when his wife objected to their action and it was then that Sukkhoo appellant had given one lathi blow to her. It is argued that his part of narration in the first information report was certainly not witnessed by Budhai complainant (P.W.6) and it indicates that he was aided and helped in drafting the said first information report by some outer agency. It is further pointed out that Shyam Deo (P.W.2) has stated that it was after one hour of the incident that he and others had accompanied Budhai to the Thana. It is further pointed out that Ram Nath (P.W.5) has stated in his cross-examination that all of them including Budhai complainant had remained at the spot for about two hours after the incident and thereafter Budhai had proceeded to Thana. It is argued that the above evidence indicates that even if the incident be taken to have occurred at about 8.00 a.m. then the complainant and others were at the spot at least till 10.00 a.m., and, as such, the first information report could not be lodged at the Thana ten miles away by 11.00 a.m. as it purports to be. From this, it is argued that the first information report, apart from being the product of deliberation and consultations, was ante-timed which fact indicates the collusion of the police as well. It is argued that for this reason the said first information report should not be taken as a corroborative piece of evidence. But we find that Ram Nath (P.W.5) has stated that ''Mujhe Kab Kitna Bajta hai iski jankari nahi hai'. From it, we have no hesitation to say that this witness has no idea of time and we should not pin him down when he stated that they had remained at the spot for two hours after the incident before Budhai proceeded to Thana. The learned Counsel for the appellants has interpreted the above quoted statement of this witnesses to mean that he does not know the hours of the day by clock and not that he has no idea of time, but we do not agree with this interpretation. We find that this witness has no idea of time. In the same way we do not pin down Shyam Deo (P.W.2) that after the incident the complainant and others had remained at the spot for exactly one hour before Budhai and others left for Thana. We can reasonably hope that after the incident at least 40 to 45 minutes were spent on the spot and then Budhai and party had proceeded to Thana. It has been explained by Bechan (P.W.3) that they had gone on foot up to Mehnagar, a distance of three miles, and from there they had arranged a taxi up to Thana. There is no reason to disbelieve this explanation. Under the circumstances, the first information report is neither delayed nor too prompt. The circumstances do not indicate that the said first information report was the result of any deliberations or consultations. It was not difficult for Budhai complainant (P.W.6) to gather the facts on the spot from his wife Smt. Gujrati to enable him to narrate them in the first part of his first information report. Of course, after he, his sons, daughter and other villagers were attracted to the spot on hearing the shouts and cries of Smt. Gujrati. The additional happenings thereafter were witnessed by Budhai complainant himself and he could narrate the same in the latter part of his first information report.
30. Keeping in view the above discussions regarding the lodging of the first information report, we do not attach any significance to the discrepancy that, in the first information report, only one lathi blow by Sukhoo, appellant, has been narrated to be given to Smt. Gujrati, whereas Budhai (P.W.6) has, in his statement, mentioned that Sukkhu appellant had given two lathi blows to her. Even if Smt. Gujrati has not been examined we have no doubt from the other evidence on record that it was Sukkhu, appellant, who had caused hurts to her. The prosecution have established this part of their case.
31. The learned Counsel for the appellants has then dilated upon certain facts appearing from the post-mortem examination report of Mool Chand (deceased). Three ounces of digested food was found in the stomach, small intestine was empty while large intestine contained gases and faecal matter. Bladder was it full with urine. It is argued that these facts indicate that the deceased had not evacuated himself by the time of the incident whereafter he died. It is argued that if the incident had taken place at about 8.00 a.m. then, in all probability, he would have by then eased himself and that would not have shown faecal matter and urine as was found by the doctor. This circumstance is utilized by the learned Counsel in support of the suggested theory of dacoity in the previous night at about 2.30 a.m. As discussed above, the said theory of dacoity has not been found by us convincing and the presence of faecal matter and urine cannot be regarded as conclusive circumstance to negative or throw doubt on the incident to have taken place at 8.00 a.m. as alleged by the prosecution. Apart from the above data appearing from the post-mortem report, we have no other material on record to indicate as to what was the natural hour when the deceased used to ease himself or whether he was constipated or not or whether his digestion was normal or poor. Mere fact that he was twentyone years old would not be a fool proof guarantee that his digestion was functioning normally. These things leave much scope for interpreting the data one way or the other. In the present case, we have direct evidence of the occurrence, and, in the last analysis, the fate of the case depends upon the assessment of the evidence given by the eyewitnesses.
32. Budhai complainant P.W.6, Jhauhpri P.W.I, Shyam Deo P.W.2, Bechan P.W.3, and Ram Nath P. W.5 have stated that it was Bansh Raj appellant who gave spear blows to Mool Chand deceased inside his Osra and to Jhauhari P.W.I. We find no reason to doubt their testimony on these points. It receives corroboration from the FIR and medical evidence on record. The prosecution has therefore fully established this part of the occurrence.
33. Learned Counsel for the appellant has lastly pointed out that Ram Nath P.W.5 has stated in his cross-examination recorded on 29-6-77 that he could not say definitely about the age of Bansh Raj appellant whether it was 18 or 19 years or whatever it may be, Bansh Raj appellant in his statement under Section 313 Cr. P.C. dated 8-9-77 gave out his age as 17 years. It is therefore agreed that there is no reason to doubt his age. Therefore, on the date of occurrence i.e. 31-3-74 he was less than 14 years and was a 'child' and youthful offender as defined in Sections 2(4) and 2(13) of the Uttar Pradesh Children Act, 1951 and was thus entitled to the benefit of Sections 63 and 27 read together with the result that sentence of imprisonment for any term cannot be passed on him and could only be dealt with any of the manners enumerated in Section 33 thereof. But we do not think the said Act is applicable in the present case. The incident took place in District Azamgarh on 31-3-74 and the sentence was passed by the Court below on 2-8-77. The said Act was made applicable to District Azamgarh w.e.f. 22-11-78 vide notification No. 71747 XXXVI-2-1978-91(P) 77 dated Nov. 22, 1978. The provision of this Act would not be drawn to this case.
33A. As a result we hold that:
(i) Sukkhu appellant is guilty of offence punishable under Section 323 I.P.C. for causing hurts to Smt. Gujrati.
(ii) Banshraj appellant is guilty of offences punishable (a) under Section 452 I.P.C. for committing house tresspass into the Osra of the residential house of Budhai complainant P.W.6 after having made preparations for causing hurt to Moo! Chand, (b) under Section 302 I.P.C. for committing murder of Mool Chand; (c) under Section 307 I.P.C. for attempt to murder Jhauhori P.W.1.
34. The prosecution case regarding formation of unlawful assembly by the six appellants and that Sukkhu and Banshraj committed the above offences at the instigation or 'Lalkar' of the other four appellants does not appear to be convincing. We entertain doubt over this aspect. Benefit of doubt has to go to the appellants. None of the appellants is, therefore, guilty of offences punishable under Sections 147, 148, 426, 447, 323/149, 302/149 and 307/149 I.P.C. Appellants Bujjha, Sukkhu, Prasad, Ram Karan and Manna alias Bhan already stand acquitted of offences under Sections 302/149 and 307/149 I.P.C. by the judgment and order of the learned III Additional Sessions Judge.
35. The appeal of appellants Bhujjha, Prasad, Ram Karan and Munna alias Bhan is allowed. Their conviction and sentences as recorded by the learned III Additional Sessions Judge, Azamgarh under Sections 147, 323/149, 447 and 426 I.P.C. are set aside. They are acquitted of the charges against them. They are on bail. They need not surrender to their bail bonds which are discharged, Their sureties too are discharged.
36. The appeal of appellant Sukkhu is partly allowed. His conviction and sentences as recorded by the learned III Additional Sessions Judge under Sections 147, 426 and 447 I. P.C. are set aside. He is acquitted of the said charges. However his conviction and sentence under Section 323 I.P.C. is confirmed.
37. The appeal of appellant Banshraj is partly allowed. His conviction and sentences as recorded by the learned III Additional Sessions Judge under Sections 148, 323/149, 426, and 447 I.P.C. are set aside, and he is acquitted of the said charges. However, his convictions and sentences under Sections 302, 307 and 452 I.P.C. are confirmed. These sentences shall however run concurrently.
38. Both Banshraj and Sukkhu are on bail. They shall surrender to their bail bonds to serve out their respective sentences. They shall be taken into custody forthwith.