( 1 ) THIS appeal was preferred by as many as six appellants who were convicted under Section 396, IPC and sentenced to imprisonment for life. No charge alternatively under any other section was framed nor they were prosecuted for the said charge. Out of these appellants Shiv Nandan, Babu lal, Raja Ram and Anandi are now dead. The appeal of Babu Lal, Raja Ram and anandi stands abated vide order dated 15-12-2003. The appeal of Shiv Nandan also stands abated vide order dated 30-1-2004.

( 2 ) WE are left, therefore, with the case of only Gauri Shanker and Prabhat. Gauri shanker is son of Shiv Nandan and Prabhat is son of Babu Lal. Shiv Nandan and Babu lal were inter se related. All the accused persons, the informant and the deceased were residents of village Palwa, Police Station khakhreru, District Fatehpur.

( 3 ) AS per the First Information Report a deep-seated enmity was pre-existing for the last 5-6 years. Rudra Prasad Vaish, the brother of Babu Lal was murdered. In that murder the informant his brother and some other persons were prosecuted. The trial according to the prosecution resulted into acquittal. The acquittal did not subside animus. The incident of Rudra prasads murder took place 3-4 years before this incident. Three four months before the present incident a dacoity was committed in the house of Shiv Nandan and Gauri Shanker. In that case during the investigation, the informant, his son Santosh Kumar and Mithai Lal s/o basudeo Singh were nominated. These accused persons, members of the present complainant party in the said case, were on bail. In between a proceeding under Section 107/ 117, Cr. P. C. was also contested between the rival factions. Thus there is no dearth of evidence of intense inter se animus between these two families.

( 4 ) THE occurrence had taken place between 0. 30 hours to 1. 30 a. m. in the night. The report of the said incident was lodged by Hubraj P. W. 1 at 7. 00 a. m. on the morning of the said date (17-7-1978 ).

( 5 ) IN the incident three persons lost their lives. They are Santosh Kumar, son of the informant Hubraj P. W. 1, Desh Raj, father of the informant and Basudeo, his cousin. The post mortem of first two was conducted by P. W. 5 Dr. Som Sharma on 18-7-1978 from 5-40 p. m. to 6-15 p. m. The postmortem examination reports are Ext. Ka 4 and Ka. 5. Post-mortem examination on the bodu of Basudoo was conducted on 19-7-1978 at 10-30 a. m. by P. W. 7 Dr. Prakash joshi. The medical examination of two injured Brij Rani, P. W. 4, who is examined as an eye-witness and Rani Devi were held on 17-7-1978 from 4. 00 p. m. to 4. 30 p. m. Their injury reports are Ext. Ka. 2 and Ka. 3.

( 6 ) THE prosecution in support of its case examined Hubraj P. W. 1, the informant P. W. 2 Dhanraj Singh (minor son of the informant. aged about 11 year), Smt. Brij Rani P. W. 4 who belongs to the family of Basudeo. Apart from that one Ram Sanvari P. W. 6 was also examined as eye-witness. Medical evidence has already been mentioned above by us. It is provided by P. W. 3 Sri Mahtab Singh, medical Officer and P. W. 7 Shri Prakash joshi Pathologist. P. W. 8 Sri Nav Nihal Singh is the scribe of the First Information Report. He is a teacher. He has turned hostile and did not support the prosecution case on preparation of the written report. The inquest was conducted by P. W. 9 J. K. Singh bhadoriya on the body of three deceased persons. Shiv Kumar Singh, Sub Inspector p. W. 10 pursued the investigation and ultimately submitted the charge-sheet in the case against these appellants and those who died during the pendency of this appeal.

( 7 ) THE First Information Report has itself alleged the participation of 8-9 unknown miscreants in the incident. The role in assault causing death of three deceased persons and two injured, was attributed to these appellants. It shall be pertinent to point out the weapon with which they were armed allegedly. Two of the appellants were armed with Karauli. They are Shiv Nandan and babu Lal. Gaur

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