(Delivered by Hon'ble Ravindra Nath Kakkar, J.)

This appeal has been preferred against the judgment and order dated 14.3.1983 passed by Sessions Judge, Saharanpur in S.T. No.81 of 1982, convicting and sentencing the appellant to undergo imprisonment for life under Section 302/34 I.P.C.

2. As the appellant no.1 Jagdish died, the appeal filed by him stands abated vide order dated 23.5.2014.

3. Prosecution story, in brief, is that informant/complainant P.W.1 Prithvi Ban was on medical leave and was in village Sultanpur when the alleged incident took place. It is said that the deceased Sunil Kumar left the 'Kolhu' which was running in the partnership with Trilok Chand at about 8.15 p.m. on 8.11.1981 for his house and shortly thereafter Prithvi Ban and Lala Nawal Kishore, who were present at 'Kolhu' also left the 'Kolhu' for their houses. Further when Prithvi Ban and Lala Nawal Kishore arrived near the turning of the road, they heard the cries of Sunil Kumar which was coming from the side of the house of Shambhu whereupon they rushed towards the place of occurrence, in the way they met Ram Kishan and Baljit at the crossing near Dev Dayanand Hospital. Baljeet is also stated to have had a torch with him which he flashed and with the aid of the light of the torch they rushed towards the place of occurrence and saw that the three accused, namely, Jagdish, Shrawan and Ved Pal were assaulting Sunil Kumar with "Tabals". On hearing the alarm made by complainant and witnesses, the accused persons escaped from the spot towards inside nearby grove. It is further alleged in the FIR that the sleeper (chappal) of one of the accused was left near the house of Manphool adjacent to the place of occurrence. It is further alleged that there was an altercation between the deceased Sunil Kumar and all these three accused persons who used to ply boats in between villages Sultanpur and Dungarpur on the river Ban Ganga and this altercation was with regard to some previous freight. Since then they were inimical towards deceased Sunil Kumar. Further alleged that Prithvi Ban informed this incident to Sub Inspector Raj Pal who was on Moharram duty in village Sultanpur. Sub Inspector and complainant Prithvi Ban had taken Sunil Kumar to the hospital at Hardwar in a Tampo. The doctor on duty at 9.30 p.m. on the same night saw the deceased and declared him dead. Thereafter complainant/informant Prithvi Ban had written the report while he was in hospital at Hardwar and then went to police station Laksar to lodge it.

4. The relevant and important fact as emanates from the FIR and evidence of P.W.1 Prithvi Ban is that the deceased Sunil Kumar was the son of P.W.1 Prithvi Ban, who was a Constable. He was transferred in May 1971 from district Nainital to district Saharanpur. He was posted at police outpost Sultanpur, police station Laksar of district Saharanpur in 1977. He resided with his family members in village Sultanpur then he was transferred to the police outpost Titron, police station Gangoh of district Saharanpur, who ultimately continued to reside in village Sultanpur and at the time of the incident he was on medical leave and had come to Sultanpur from Titron. It is further stated that at present his family is residing in Roorkee since June 1982. Further it transpires that Prithvi Ban was married in village Dungerpur which was situated about 5 kms. from the village Sultanpur. P.W.5 Pooran Gir is maternal uncle of the deceased. Further it transpires that the river Ban Ganga flows in between the villages of Sultanpur and Dungarpur. There is no bridge over the river Ban Ganga and it has to be crossed by boat at Ganga Ghat near village Pratap-pur.

5. As per FIR all the three accused persons are the residents of village Pratap-pur in which accused Jagdish and Shrawan are real brothers while the accused Vedpal is their cousin. Village Pratappur situates about 2 kms near village Sultanpur. It also transpires that all the three accused persons are Mallah