Judgment :-

V.S. Sirpurkar, J.

This judgment will dispose of two appeals being Criminal Appeal No. 1241 of 2003 and Criminal Appeal No. 1242 of 2003. The High Courts judgment dismissing the appeal and confirming the conviction and sentence is in challenge in these appeals at the instance of the three accused persons, namely, accused Sunil Kumar, accused Tilak Singh and accused Ram Singh. Originally, five accused persons came to be tried for committing offences under Section 304 Part II read with Sections 147, 504 and 302 read with Sections 149, 147 and 504 IPC. They were accused Sunil Kumar, accused Jageshwar, accused Tilak Singh, accused Ram Singh and accused Munna. All the accused persons were charged and convicted for the offence under Section 304 Part II read with Section 149 and Section 147, IPC and were sentenced to suffer rigorous imprisonment for four years. All of them filed appeal before the High Court. However, the High Court convicted all the accused persons.

2. Before us only three accused persons have come up in appeal, they being accused Sunil Kumar and accused Tilak Singh (in Criminal Appeal No. 1241 of 2003) and accused Ram Singh (in Criminal Appeal No. 1242 of 2003). It is reported that accused Jageshwar and accused Munna are no more. That is how we have to consider the case only of three appellants. They shall be referred to as appellant Nos. 1, 2 and 3 respectively.

3. The prosecution case was that all the accused persons had on 23.02.1982 at about 5 p.m. in Mohalla Shivapuri within the limits of Police Station Orai, District Jalaun formed an unlawful assembly with the common object to commit the murder of Salim and inflict injuries on the person of Salim causing his death. The matter was reported by Hamid Khan, father of the deceased immediately at 5.30 p.m. It was contended therein that when Salim was working in his shop at about 5 p.m., the accused persons came to his shop and started asking Salim whether he considered himself to be a great gunda since he was showing off in the exhibition ground and thereafter started abusing him in filthy language. On being objected by Salim, all the accused started beating him with lathis/dandas whereupon Salim fell down. The complainant raised an alarm hearing which witnesses Naeem, Mohd. Ilyas Naushe and several other persons reached the spot. Seeing them, accused persons fled away from the scene.

4. Usual investigations followed and the accused came to be arrested barely within 2 or 3 days. The injured Salim was sent for Medical examination of the injuries where as many as six contused wounds were found on his body. Salim had become unconscious and, therefore, all the injuries could not be noted. Salim was thereafter transferred to the Medical College, Kanpur for treatment where next day i.e. on 24.02.1982 at 7.55 a.m. he breathed his last. The information of death was sent to the Police Station, Swarup Nagar, Kanpur and an inquest was prepared of his body. Photographs were taken and the body was sent for post mortem examination. Salim was hardly 22 years old. In the post mortem examination, three injuries were found on his head and it was found that he had suffered a linear fracture of parietal bone on both sides extending from left ear to right ear. Haemetoma was found in the brain and according to the doctors, death was due to coma as a result of the head injuries caused by blunt weapons. The accused were charged for the offences under Sections 147, 304, 323 and 504 IPC. They abjured the guilt. Hamid Khan (PW-1), Mohd. Ilyas @ Naushe (PW-2) and Naeem (PW-3) were examined by the prosecution as eye-witnesses along with others. Their evidence was accepted and the accused persons came to be convicted as stated above. Their appeal also failed and that is how the accused persons are before us.

5. Mr. Amarendra Sharan, learned Senior Counsel who appeared in both the appeals attacked the judgment of the High Court and the Trial Court firstly, contending that there was abs