The incident resulting in the death of Jugendra Pal Singh and causing injuries to his sister Smt. Ramwati and mother Smt. Ketuki occurred on 13.04.1981 at about 7.00 a.m. In the Khalihan near village Hasanpur under Soron Police Station of District Etah.The case of the prosecution as appearing from the first information report and statement of the complainant Suresh Pal Singh (P.W. 1) S/o Suraj Singh r/o village Hasanpur P.S. Soron (Etah), in brief, is that a case under Section 366/376 IPC regarding abduction and rape of Km.Asha and Munni, both nieces (sister's daughters) of complainant, was got registered against the recused Yatendra Singh etc. on 10.04.1981 at P.S. Soron.On 13.04.1981 at about 7.00 a.m., the complainant Suresh Pal Singh, his brothers Jugendra Pal Singh and Narendra Pal Singh and his nephew (sister's son) Mahesh Pal Singh, who was residing with him, were going to see their Khilihan.When they reached near the Khalihan, the accused Bishan Singh, Jangi Singh, Gajju @ Gajraj Singh, Yatendra Singh sons of Pyare Singh, Natthu Singh S/o Sahib Singh, Bhupendra Singh S/o Natthu Singh, Ombvir Singh @ Munna S/o Udaivir Singh, Udai Pratap S/o Gajju Singh, Suraj Pal Sijngh S/o Amir Singh, Dhoom Singh, Munendra Singh @ Ram Singh, Ramvir Singh Sons of Mukut Singh Thakur, Bhoodev, Man Singh sons of Jhamman, Manendra Pal S/o Bhoodev, Ram Nath S/o Liladhar, Shibbu S/o Chattar, Hardev S/o Heeru, Ram Singh S/o Hardev and Lalau S/o Shivani Mallah ail residents of village Hasanpur P.S. Soron District Etah and Kundan Singh Thakur r/o village kachhla, District Budaun, who was Samdhi of Natthu Singh, came out from the side ofKhalihan having lathies, tamancha and Farsa.The accused Natthu Singh, who was armed with his licenced gun, exhorted saying "Jugendra pal Singh ko pakad to tatha jan se mar do, Kyunki hamare khilaf jhutha mukadama darj karaya hai".On this exhortation, the accused persons with intention to cause the death of Jugendra Pal Singh began to assault him by lathies etc. Somehow the complainant Suresh Pal Singh, his bother Narendra Pal Singh and his sister's son Mahesh Pal Singh escaped and rushed towards village raising alarm.On hearing hue and cry, Smt. Ramweti, sister of the complainant and his mother Smt. Ketuki, his nieces Munni and Asha and other village people came to the place of occurrence and saw the incident.When Smt. Ramwati and Smt. Ketuki tried to save Jugendra Pal Singh, they were also assaulted by the accused persons, due to which they sustained injuries.Thereafter, the accused persons considering the injured Jugendra Pal Singh to have died, fled away towards Ganga Ji.The complainant carried his brother Jugendra Pal Singh, sister and mother by bullock cart to P.S. Soron, where he made over the their written report Ext. Ka 1, on the basis of which Chik FIR Ext. Ka 4 was prepared by P.W. 4 Gurudutt, who registered a case under Section 147, 148, 149, 307 IPC at Crime No. 97/81 against above named accused persons on 13.04.1981 at 9.05 a.m., entry of which was made in the G.D. No. 12 (Ext. Ka 5).The injured Jugendra Pal Singh, Smt. Ramweti and Ketuki were sent to Primary Health Centre (PHC) Kasganj (Etah).JUDGMENT Vijay Kumar Verma, J.This appeal has been preferred against the judgment and order dated 22.01.1982 passed by 3rd Additional Sessions Judge Etah, in ST.No. 400 of 1981, whereby the accused-appellants (1) Jangi Singh (2) Gajju Singh @ Gajraj Singh, (3) Bhupendra Singh (4) Omvir Singh (5) Udai Pratap Singh (7) Dhoom Singh (8) Munendra Singh @ Ram Singh (9) Rambir Singh (10) Man Singh (11) Bhudev (12) Mahandra Pal (13) Ram Nath (14) Shibbu (15) Hardev (16) Ram Singh and (17) Lalau @ Lala Ram have been convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 IPC, imprisonment for life under Section 302 read with Section 149 IPC and five years rigorous imprisonment under Section 307 read with Section 149 IPC.The appellants accused (1) Bishan Singh (2) Natthu Singh (3) Yatendra Singh and (4) Kundan Singh have been convicted and sentenced to undergo rigorous imprisonment for two years under Section 148 IPC, imprisonment for life under Section 302 read with Section 149 IPC and five years rigorous imprisonment under Section 307 read with Section 149 IPC.During pendency of this appeal, the appellants-accused Jangi Singh, Gajju @ Gajraj Singh, Natthu Singh, Saraj Pal Singh, Munendra Singh @ Ram Singh, Ram Nath, Shibbu, Hardev, Lalau @ Lalaram and Kundan Singh have died.Hence their appeal has been abated.In the way near village Hulpur.the Injured Jugendra Pal Singh succumbed the injuries and his dead body along with both the iynjured were carried to P.H.C. Kasganj, where Smt. Ramwati was medically examined by P.W. 3 Dr. R.C. Bajpai on 13.04.1981 at 12.30 p.m. According to the injury report Ext. Ka 2, the following injuries were found on her person:Traumatic swelling 7cm x 3 cm.on outer side of right Forearm upper part.2. Contusion 5 cm.x 1.5 cm.on outer side and owner portion of Rt. upper arm.3. LW. 3 cm.x 1/2 cm.x bone deep on back and root of Rt. thumb.Abrasion 2 cm.x 1/2 cm.on top of Rt. thumb.Contusion 2 cm.x 1 cm.on front and upper part of left knee joint.All the injuries were simple, which were caused by blunt weapon and friction.Duration was about 5-7 hours old.On the same day at 12.45 p.m. Smt. Ketuki was examined by Dr. Bajpai, who found the following injuries on her person vide injury report Ext. Ka 3:Contusion 3 cm.x 2 cm.on top of right shoulder.2. Contusion 10 cm.x 6 cm.on left buttock upper part.Traumatic swelling 20 cm.x circumference of left leg.U.O. Adv.X-ray of left leg.Abrasion 1 cm.x 1 cm.on inner side of left big toe.Traumatic swelling 12 cm.x circumference of left hand and writs.U.O. Adv.X-ray of left hand.Abrasion 2 cm.x 1/2 cm.on back of right hand.All injuries except injury No. 3 and 5 were simple, which were caused by blunt weapon and friction.Duration was about 5-6 hours old.Injuries No. 3 & 5 were kept under observation and X-ray of left leg and left hand with wrist was advised.Thereafter, the dead body was sent in sealed condition for post-mortem examination, which was conducted on 14.04.1981 at 11.00 a.m. by P.W. 6 Dr. O.P. Vaidya.According to post-mortem report Ext. ka 19, the following ante-mortem injuries were found on the person of deceased:Two lacerated wound each measuring 4 cm.x 1 and 3 cm x 1cm.x bone deep on the top of skull 2 cm.Abraded contusion 3 cm.x 3 cm.just lateral to left outer angle of the eye.Contusion 4 cm x 2 cm on the top of right shoulder.Contusion 3 cm.x 1/2 cm on the top of left shoulder.Contused swelling all over the right forearm.There is a clinical evidence of fracture both bone of the forearm at lower 1/3rd.Contused swelling all over the left forearm including back of the left hand.Double line contusion 15 cm.x 4 cm on the R. side back of chest.6 cm below the inferior angle of scapula.Contusion 6 cm.x 3 cm.in right hypochondrial region.Double line contusion 9 cm.x 2 1/2 cm on the back left side in the middle & outer part.Multiple abraded contusion all over the thigh, leg & foot right side ranging from 3 cm x 2 cm to 2cm x 2 cm.on the anterior aspect only.Multiple abraded contusion on the front of left thigh and leg all over ranging from 5 cm x 2 1/2 cm to 2 cm x 1 1/2 cm on the anterior aspect only.In internal examination, the membrances and peritoneum were found congested.The cavity contained about 20 ounces of free & clotted blood.In the stomach few ounces of watery fluid was found present.Large intestine contained very little amount of faucal matter.Right lobe was lacerated and Gall Bladder was half full.According to Dr. Vaidya, the death was caused due to coma shock and haemorrhage as a result of ante-mortem injuries.The investigation was entrusted to S.I. Munshi Lal (P.W.5) who recorded the statement of witnesses, prepared site plan Ext. Ka.After making other necessary formalities regarding investigation, charge sheet Ext. Ka.11 was against all accused-appellants.On the case being committed to the court of session for trial, charges under Section 147, 148, 302 and 307 read with Section 149 of Indian Penal Code were framed against the appellants-caused, to which they pleaded not guilty and claimed to be tried.The prosecution in order to prove its case examined six witnesses in all in this case.P.W. 1 Suresh Pal is the complainant, who had lodged the FIR at P.S. Soroa.He has proved his written report Ext. Ka 1, which was scribed by him.P.W. 2 Ramwati is the injured.P.W. 3 Dr. R.C. Bajpai has proved injury reports Ext. Ka 2 and Ka 3 of the injured Smt. Ramwati and Smt. Ketuki respectively.P.W. 4 constable Gurudatt is the scribe of chik FIR Ext. Ka. 4, which has been proved by him along with the copy of G.D. (Ext. Ka 5) regarding registration of case.The copy of hat G.D. (Ext. Ka 6) has been proved by him.S.I. Munshi Lal (P.W. 5) is the Investigating Officer.Inquest report Ext. Ka 12 and connected papers Ext. Ka 13 to Ext. Ka 16 have also been proved by this witness by recognizing the had writing and signature of S.I. A.S. Khan, who had conducted inquest proceeding on the dead body.G.D. No. 16 time 9 30 a.m. dated 10.04.1981 (Ext. Ka 17) has also been proved by S.I. Munshi Lal by recognizing the hand-writing and signature of constable/clerk Gurudatt.This G.D. pertains to the registration of case under Section 366/376 IPC against the accused Bishan Singh etc, FIR of which was lodged at P.S. Soron by Narendra Pal Singh brother of the deceased.In their statements recorded under Section 313 Cr.P.C. the appellants-accused denied their participation in the alleged incident and they have stated that due to connivance of the police and Bhagirath, they have been falsely implicated in this case.It is also stated by some accused that earlier also, they were falsely implicated in the case under Section 376 and 332 IPC.The accused Kundan Singh has stated that he is the father-in-law of accused Bhupendra Singh and for this reason, he has been falsely implicated in this case.The accused-appellants did not examine any wetness in their defence.The learned Trial Court after hearing parties counsel and perusing the evidence on record, convicted the appellants-accused and sentenced them as mentioned in para 1 above vide impugned judgment, which has.been challenged in this appeal.We have heard Sri Somesh Khare learned Counsel appearing for the appellants-accused and learned AGA for the State-respondent and also perused the impugned judgment and entire evidence on record carefully.Regarding the incident that occurred on 13.04.1981 at about 7.00 a.m. in the Khalihan, the prosecution has examined Suresh Pal and Smt. Ramwati.Supporting FIR version, P.W. 1 Suresh Pal after narrating some facts leading to the enmity, has stated in his statement that when on 13.04.1981 at about 7.00 a.m. he and his brothers Jugendra Pal Singh and Narendra Pal Singh and his nephew Mahesh Pal Singh had gone to see their Khalihan, all the 21 accused persons present in court came out from the side of Khalihan and on exhortation of Natthu Singh began to assault Jugendra Pal Singh by lalthies.It is further stated by this witness that somehow he.his brother Narendra Pal and nephew Mahesh Pal escaped and raised noise, on which his mother Ketuki Devi, sister Ramwati and nieces Asha and Munni came there and, when his mother and sister tried to save Jugendra Pal Singh by laying upon him, they we e also assaulted by the accused persons, due to which they sustained injuries.The witness (P.W. 1) has named and recognized all the appellants-accused who were present in court at the time of his deposition.It is further stated by this witness that the accused Natthu Singh was armed with licenced gun, his samdhi Kundan Singh was having tamancha, Bishan Singh and Yatendra Singh were armed with Farsa and Ballam respectively and other accused were having lathies.He has further stated that after the incident he carried the injured persons to P.S. Soron, where he lodged the FIR and when he was carrying the injured persons for medical examination to Kasganj, Jugendra Pal Singh succumbed to the injuries near village Hulpur after which his dead body and both injured were carried to Kasganj hospital, where the injured were medically examined and after inauest proceeding, the dead body of Jugendra Pal Singh was sent to Etah for post-mortem examination.Regarding the motive to commit this crime the witness Suresh Pal has stated that on 10.04.1981, the accused Bishan Singh etc. had abducted his nieces (sister's daughters) Asha and Munni, with whom rape was also committed by them, report of which was lodged by his brother Narendra Pal Singh.It is also stated by this witness that incident of police encounter had taken place on 10.11.1980 with accused Bishan Singh etc. and during investigation of that case, his brother Jugendra Pal Singh had told the real incident to police against the accused persons, due to which they began to have enmity and they had declared that they will kill all of them and okust them from village due to which Judgndra Pal Singh had given application to S.S.P. Etah and CO.Kasganj for his security.Lengthy cross-examination made from P.W. 1 Suresh Pal by the learned Counsel for the appellants accused, out nothing material could be elicited from him.He has fully supported the case of prosecution and his testimony is worth relying.There is no serious infirmity in his testimony and the learned Trial Judge has rightly placed reliant on the testimony of this witness.Next witness is Smt. Ramwati (P.W. 2) who is injured also.In her statement recorded on 17.12.1981 in trial court, P.W. 2 Ramwati has stated that about 9 months age at about 7.00 a.m. Jugendra Pal Singh along with his brothers Suresh Pal Singh and Narendra Pal Singh and nephew Mahesh Pal Singh had gone to see hisKhalihan and when on hearing hue and cry, she and her mother Ketuki and girls Asha and Munni reached on the place of occurrence near Khalihan they saw that 21 accused present in court were assaulting her brother Jugendra Pal Singh.She has further stated that she and her mother were also assaulted by the accused persons due to which they both sustained injuries.It is further stated by Smt. Ramwati that considering her brother to nave died, the accused persons fled away towards Ganga Ji.It is also stated by this witness that being widow she has been residing in the house of her brother and she knows all the accused prior to the incident.She has also named some accused in her examination-in-chief and recoanized all the 21 accused present in the court.In cross-examination it is stated by Smt. Ramwati Devi that Jugendra Pal Singh was surrounded by the accused persons and 17 accused having lathies were assaulting him by lathies.It is also stated by this witness that Natthu Singh and Kundan Singh were armed with gun and tamancha respectively, Bishan Singh was having Pharsa and Yatendra Singh was armed with ballam and rest accused where having lathies.Smt. Ramwati also has been cross examined at length by the learned Counsel for the accused-appellants, but none material has been elicited from this witness also.Being injured, the presence of Smt. Ramwati at the time of occurrence is not doubtful.Her testimony also is wholly reliable and there is no reason to disbelieve her testimony.The learned Trial Judge has not committed any illegality in placing reliance on the testimony of this witness.Ocular evidence of the witnesses Suresh Pal Singh and Ramwati finds corroboration from medical evidence.We have already extracted the injuries found on the person of deceased Jugendra Pal Singh and injured Smt. Ramwati and Smt. Ketuki.All the injuries of deceased and both the injured are possible to be caused by lathies.As such, on the basis of the testimony of Suresh Pal Singh and Smt. Ramwati, it is fully proved beyond reasonable doubt that Jugendra Pal Singh, Ramwati and Ketuki were assaulted by appellants-accused on 13.04.1981 at about 7.00 a.m. near the Khalihan, which was kept at a distance of about 100 paces from the house of complainant.There was motive for the accused persons to commit this crime.Admittedly, an FIR regarding abduction and rape of Km.Munni and Km.Asha, (both unmarried niece of the deceased) was lodged on 10.04.1981 against some accused by Narendra Pal Singh, brother of the deceased.In a case of police encounter with some accused, the deceased had told the real facts against them to the Investigating Officer.On the basis of the application moved by the deceased for his security against the accused persons, action under Section 107/116 Cr.P.C. was also taken against some accused prior to this incident.There was long standing enmity between the parties and due to that enmity, the accused persons after forming an unlawful assembly on 13.04.1981 at about 7.00 a.m. made a plan to eliminate the deceased Jugendra Pal Singh and in prosecution of that common object, rhey all having deadly weapons and lathies assembled behind the Khalihan and assaulted the deceased when he cama to see hisKhalihan along with his brothers Suresh Pal Singh and Narendra Pal Singh and his nephew Mahesh Pal Singh and when Smt. Ramwati and Ketuki tried to save the deceased by laying upon him, they also were assaulted.The main submission made by Sri Somesh Khare, learned Counsel for the accused-appellants was that the appellants-accused Natthu Singh, Kundan Singh, Bishan Singh and Yatendra Singh did not use their weapons and hence their conviction with the aid of Section 149 IPC s bad in law.From the evidence on record, this fact is borne out that the accused-appellants Netthu Singh, Kundan Singh, Bishen Singh and Yatendra Singh having deadly weapons along with other accused having lathies formed an unlawful assembly, with common object to commit the murder of Jugendra Pal Singh with whom to they were having enmity.17 accused having lathies had mercilessly beaten the deceased Jugendra Pal Singh, who suffered 11 ante mortem injuries, which have extracted above.In ante mortem injury No. 1 two lacerated wounds measuring 4 cm x 1 cm and 3 cm x 1 cm x bone deep on the top of skull were found.In the result, the appeal is hereby, dismissed.

Sections cited: Section 149 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 307 in The Indian Penal Code, Section 148 in The Indian Penal Code, Section 147 in The Indian Penal Code, Section 376 in The Indian Penal Code, Section 366 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 325 in The Indian Penal Code, Section 332 in The Indian Penal Code