(Per Hon. Kaushal Jayendra Thaker, J.)

1. This appeal is directed against the judgment and order dated 7.1.1983 passed by 8th Addl. District and Sessions Judge, Allahabad in Sessions Trial No. 54 of 1982, whereby the appellants Jagat and Suraj Bali were found guilty and convicted for the offences punishable under Section 302 IPC read with Section 34 IPC, Section 342 IPC read with Section 34 IPC and Section 323 IPC read with Section 34 IPC. Each of the appellants were sentenced for life imprisonment under Section 302/34 IPC and under Section 342/34 IPC they have been sentenced for six months rigorous imprisonment and further under Section 323/34 IPC they have been sentenced to six months rigorous imprisonment. All the sentences were directed to run concurrently.

2. Prosecution story as disclosed by P.W.2 Raj Bahadur, in brief is that on 3rd October, 1979 at about 7 to 7.15 a.m., P.W.3 Babaoo Kurmi came to the house of informant (Raj Bahadur) and asked him and his brother Gopi (deceased) to go for irrigation of the fields. Thereafter, Gopi, Raj Bahadur and Babaoo Kurmi went to the pumping set of P.W.1 Sarjoo Patel where it was disclosed by Sarjoo Patel that the diesel is not available and hence the water supply could only be available on next day at about 4 a.m.

3. It is further alleged that on 4th October, 1979 at about 4 a.m. Babaoo again came to the house of Raj Bahadur and asked him and his brother Gopi to go for irrigating the fields. Gopi, Raj Bahadur and Babaoo proceeded to the pumping set of Sarju Patel and when they reached in the grove of Chhotai Nai, accused-appellants Jagat, Suraj Bali and their brother Jagdeo (deceased) met them. All of them were allegedly armed with lathis. Jagdeo struck lathi on the head of Gopi who fell down. Babaoo and Raj Bahadur raised alarm and thereupon Jagat and Suraj Bali ran towards them with lathis. Raj Bahadur and Babaoo ran away towards their house and disclosed this incident to Triloki Pandey, Dani Maharaj, Chhedi Thakur and Ram Adhar Patel. Raj Bahadur and Babaoo thereafter along with these persons reached the grove of Chhotai Nai but Gopi was not there. Sarju Patel told them that appellants Suraj Bali, Jagat and Jagdeo had taken Gopi towards their house and they were saying that he shall be implicated in a false case.

4. Thereafter Raj Bahadur, Suraj Patel and Babaoo went to the house of the accused persons and saw that accused Jagat, Suraj Bali and their brother Jagdeo were beating Gopi with Danda and Lathi. They asked the accused persons and Jagdeo not to beat him but assailants did not pay any heed. Informant (P.W-2 Raj Bahadur) thereafter went to the police Station and lodged a First Information Report (Ex-Ka-2) scribed by one Krishna Murari at Police Station Soraon, District Allahabad on 4.10.1979 at 7.15 a.m.

5. Lateron Gopi died on the spot as a result of the injuries allegedly caused by the accused appellants and one Jagdeo. Accused Jagdeo is said to have died while going to the Jail after arrest. Relevant entries were made in the General Diaries of the police station. Inquest proceedings were initiated and completed. Inquest report (Ex-Ka-8) was prepared and the dead body of deceased was sent for postmortem.

6. The matter was initially investigated by P.W.6 Sub Inspector Sri Raja Ram Dubey, who conducted the initial investigation of the case. He also prepared the site plan (Ex-Ka-14), obtained samples of simple earth and blood soaked earth, prepared memorandum of recovery (Ex-Ka-15), recorded the statements of witnesses and thereafter filed charge sheet (Ex-Ka-6) against appellants Jagat and Suraj Bali under Sections 304, 342, 323 IPC.

7. Trial judge, after commitment of the case, framed charges against the appellants Jagat Pasi and Suraj Bali under Sections 323/34, 342 IPC and Section 304/34 IPC on 13.05.1982. However, the trial judge during the course of trial, amended the charge to Section 302/34 IPC, 323/34 IPC and Section 342/34 IPC vide order dated 22.07.1982