Point of Law : Common object of unlawful assembly to kill the deceased - minor variance in the statement of maker of first information report should not lead to conclude that first information report is antetimed.

JUDGMENT :

Ajai Kumar Srivastava-I, J.

1. We have heard Sri Anuj Dayal, learned counsel for the appellant and Sri Anurag Verma, learned Additional Government Advocate for the State-respondents.

2. Challenge in this appeal is to the judgment and order dated 19.01.1984 rendered by Additional Sessions Judge, Unnao in Sessions Trial No.112/1980 arising out of Crime No.39/1979, under Sections 148, 302/149, 429, 436, 323 Indian Penal Code (hereinafter referred to as I.P.C.), Police Station Ajgain, District Unnao, whereby the appellant No.1, Sheo Bux Singh has been convicted and sentenced to undergo one year’s rigorous imprisonment for the offence under Section 147 I.P.C.; one year’s rigorous imprisonment for the offence under Section 323 I.P.C.; life imprisonment for the offence under Section 302/149 I.P.C.; ten years’ rigorous imprisonment for the offence under Section 436/149 I.P.C.; five years’ rigorous imprisonment for the offence under Section 429/149. The appellant no.2, Raj Bahadur Singh, has been convicted and sentenced to undergo two years’ rigorous imprisonment for the offence under Section 148 I.P.C.; life imprisonment for the offence under Section 302/149 I.P.C.; ten years’ rigorous imprisonment for the offence under Section 436/149 I.P.C.; five years’ rigorous imprisonment for the offence under Section 429/149 I.P.C.; one year’s rigorous imprisonment for the offence under Section 323/149 I.P.C. The appellant No.3, Nanha Singh has been convicted and sentenced to undergo two years’ rigorous imprisonment for the offence under Section 148 I.P.C.; life imprisonment for the offence under Section 302 I.P.C.; ten years’ rigorous imprisonment for the offence under Section 436/149 I.P.C.; five years’ rigorous imprisonment for the offence under Sections 429/149 I.P.C.; one year’s rigorous imprisonment for the offence under Section 323/149 I.P.C. All the sentences have been directed to run concurrently.

3. At the outset, it is required to be noted that the charge-sheets, Ex. Ka-7 and Ex. Ka-12 were laid before learned trial Court against six accused persons. The case against accused, Ram Bux Singh and Dev Bux Singh stood abated during trial due to their death. The instant appeal was filed by three appellants, namely, Sheo Bux Singh, Raj Bahadur Singh and Nanha Singh. Due to death of appellant no.1, Sheo Bux Singh and appellant no.3, Nanha Singh, the instant appeal has already been abated, vide order of this Court dated 21.04.2018. Therefore, the present appeal survives only in respect of appellant no.2, Raj Bahadur Singh.

4. The facts as unfolded by the prosecution, in short conspectus, are that a written report, Ex. Ka-2 was given at Police Station Ajgain, District Unnao in the intervening night of 13.02.1979/14.02.1979 at 00:30 hours by the first informant, Vijay Bahadur Singh, P.W.-2 stating therein that on 13.02.1979 at about 9:00 P.M., Ram Bux Singh, Dev Bux Singh armed with fire arms, Sheo Bux Singh armed with lathi along with one of his associate Raj Bahadur Singh, who was armed with country made fire arm and Nanha Singh, who was carrying a knife, came to the house of younger brother of the first informant and pressed his door and opened fire at his door. These accused persons hurled abuses and were also extending threat to kill. On hearing commotion, the first informant came upstairs and raised alarm. The accused persons opened fire at the first informant who, after taking shelter, started pelting stones etc. at the accused persons. Meanwhile, accused, Dev Bux Singh torched the thatch of Ram Singh and Ram Prakash and thereafter, torched the houses of Kallu Singh, Bhagauti Lodh and the house of the first informant. They also set the stubble ablaze. They were extending threat to shoot anyone who comes to rescue. Due to commotion, Jagan, Chetram, Purvi, Prabhu, Ram Sevak Yadav and some other people came to the spot and also raised alarm. Ram Sevak was hit by Sheo Bux Singh by Lathi when he was trying to take his animals away.

4(a) I