(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This appeal has been preferred by the accused-appellants against the judgment and order dated 07.02.1985 passed by the Sessions Judge, Badaun in Sessions Trial No. 204 of 1984, under Sections 302/34, 325/34 and 323/34 IPC, Police Station Qadar Chowk, District Badaun whereby all the accused appellants have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34 IPC, sentence of two years Rigorous Imprisonment for the offence punishable under Section 325/34 IPC and a sentence of Six months Rigorous Imprisonment for the offence punishable under Section 323/34 IPC.

2. The present appeal was filed in the year 1985 against the impugned judgment dated 07.02.1985 and it has come up for hearing before us after lapse of almost 33 years.

3. At the outset, it is pertinent to mention here that during the pendency of this appeal, the accused-appellant no. 3 namely Laxman has died. Accordingly, vide order dated 21.09.2017, this Court has abated the appeal in respect of the accused-appellant no. 3- Laxman.

4. Now, we are proceeding to consider the present appeal in respect of the surviving appellants i.e. Appellant Nos. 1 & 2 namely Virendra & Gajraj.

5. The factual scenario as described by the prosecution is essentially as follows:

6. The accused Gajraj Singh and Laxman Singh are real brothers while accused Virendra Singh is the son of Laxman. Accused Laxman Singh and Gajraj Singh are the real uncles of the deceased Shyam Pal Singh. The complainant Ramvir Singh is the real brother of the deceased Shyam Pal Singh and Jamadar Singh is the father of the complainant as well as the deceased. Smt. Jamna is the wife of Jamadar Singh and mother of the deceased. Thus, the accused (as well as), the deceased and the injured belong to the same family.

7. The prosecution case is that about three months prior to the present occurrence, deceased Shyam Lal had a quarrel with the accused Laxman Singh. Subsequent thereto on the date of the alleged occurrence Sujan Singh son of the deceased Shyam Pal Singh, aged about 8 years had plucked Bhindis (Lady-fingers) from the accused Laxman Singh's field. On this, the accused Virendra Singh hung Sujan Singh into the well as a punishment for plucking Bhindis, whereupon, Sujan Singh wept and cried. On hearing the cries of Sujan Singh, the complainant Ram Pal Singh, who was present at that time at his Khalihan (a place where grains are kept) rushed to the well. On seeing him, Virendra Singh let him (Sujan Singh) off. Thereupon Ram Pal Singh along with Sujan Singh returned home and narrated the entire incident to his brother Shyam Lal Singh (deceased) and his father Jamadar and also told them that Virendra Singh was abusing his entire family. Thereafter, at about 3.45 PM the deceased, the informant and their father Jamadar and Roop Lal Singh went to the accused persons (towards the well) to complain about the above incident, which led to exchange of hot words between them, whereafter when the deceased party was returning home, all the three accused followed them. They again entered into a verbal altercation, as a result, the accused started assaulting the deceased with Lathis. The complainant and his father Jamadar tried to save the deceased but they were also assaulted. Smt. Jamna also arrived at the scene of the occurrence and when she tried to intervene she was also assaulted. The accused thereafter ran away from the scene thinking that the deceased was dead. The deceased succumbed to his injuries immediately after the occurrence.

8. A report of the occurrence Ext. Ka 2 was lodged by Ram Pal Singh, brother of the deceased at 00.50 hours at the police station Qadar Chowk, which is at a distance of 12 KM from the scene of occurrence, whereupon entry regarding registeration of crime was made in G.D. (Vide entry Ext. Ka 5). The investigation was taken over by the Station Officer P.S. Qadar Chowk Kali Shankar P