JUDGMENT

Dr. Arijit Pasayat, J.—

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court dismissing the appeal filed by the appellants. Seventeen persons had filed the appeal questioning their conviction for offence punishable under Sections 147, 302 read with Sections 149, 307 read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’). Four of the accused persons namely Bishin Singh, Nathu Singh, Yatinder Singh and Kundan Singh were separately convicted for offence punishable under Section 148 IPC. During the pendency of the appeal eight of the accused persons died and their appeal was held to have abetted so far as they are concerned.

3. Prosecution versions as unfolded during trial is as follows:

On 13.4.19081 at about 7 a.m. in the Khlihan near village Hasanpur under Soron Police Station of District Etah, the incident resulting in the death of Jugendra Pal Singh (hereinafter referred to as the ‘deceased’) was occurred. A case under Section 366/376 IPC regarding abduction and rape of Kumari Asha and Munni both nieces (sister’s daughters) of complainant was registered against the accused Yatendra Singh and others 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, Ram Vir Singh sons of Mkut Singh Thakur, Bhoodev, Man Singh sons of )hamman, Mahendra Pal S/o Bhoodev, Ram Nath S/o Hardev and Lalau S/o Shivan Mallah all residents of Village Hasanpur P.S. Soron District Etah and Kundan Singh Tahkur R/o Village Kachhla, District Budaun, who was Samdhi of Natthu Singh, came out from the side of Khalihand having lathies, tamancha and Farsa. The accused Natthu Singh who-was armed with his licensed gun, exhorted saying, “Jugendra Pal Singh Ko Pakad lo tatha jan se mar do, Kyunki hamare khilaf jhutha mukadam darj karaya hai.” On this exhortation, the accused persons with intention to cause the death of Jugendra Pal Singh began to assault him by lathi and other weapons. 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. Ramwati 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 on the basis of which chik FIR Exh. Ka4 was prepared by Gurudutt (PW 4), who registered a case under Sections 147, 148, 149 and 307 IPC at Crime No. 97/81 against above named accused persons on 13.4.1981 at 9.05 a.m. entry of which was made in the GD No. 12.

4. After completion of investigation chargesheet was filed. As accused persons pleaded innocence, trial was held. The trial court as noted above found the accused persons guilty and convicted and sentenced them. In appeal the primary stand taken before the High Court was that evidence of the so called witnesses are of no consequence. It was also submitted that Section 149 has no application to the facts of the case. It was also submitted that t