JUDGMENT :

Ramesh Sinha, J.

INTRODUCTION

1. Six accused persons, namely, Shiv Pratap Singh, Vijay Vikram Singh, Kali Charan, Nanhey, Ram Autar and Jaskaran were tried by the IV Additional Sessions Judge, Hardoi in Sessions Trial No.314 of 1984 : State Vs. Shiv Pratap Singh and others arising out of Case Crime No.188 of 1983, under Sections 147 , 148, 149, 302 I.P.C. at police station Bilgram, District Hardoi.

2. Vide judgment and order dated 07.06.1985, the learned IV Additional Sessions Judge, Hardoi, while acquitting the accused Jaskaran from all the offences/charges levelled against him, convicted and sentenced the rest of the accused persons, namely, Shiv Pratap Singh, Vijay Vikram Singh, Ram Autar, Kalicharan and Nanhey in the manner as stated herein below:-

“i. Under Sections 302/149 I.P.C. to undergo life imprisonment; and

ii. Under Section 323 /149 I.P.C. to undergo six months R.I.”

In addition, the IV Additional Sessions Judge, Hardoi had also convicted the accused Shiv Pratap Singh, Nanhey Lal and Ram Autar under Section 148 I.P.C. and sentenced them to undergo one year’s imprisonment and other two accused persons, namely, Vijay Vikram Singh and Kali Charan were convicted under Section 147 I.P.C. and sentenced them to undergo six months’ R.I.

All the sentences were directed to run concurrently by the IV Additional Sessions Judge.

3. During pendency of the instant appeal, appellant no.1-Shiv Pratap Singh, appellant no.3-Kalicharan and appellant no.5- Ram Autar died and, as such, vide order dated 13.08.2018, the instant appeal filed against the aforesaid appellants no.1, 3 and 5 stand abated.

4. Now, the instant appeal is surviving only in respect of appellant no.2-Vijay Vikram Singh and appellant no.4- Nanhey, who are said to be in jail since 08.07.2019.

FACT

5. Shorn off, unnecessary details the facts of the case are as under :-

On 28.10.1983, informant-Lal Bahadur Singh (PW1) and his elder brother Vijay Bahadur Singh Pradhan (deceased) had gone to Cold Store, Bilgram for taking the seed of potato and after taking it, they were returning home on their respective bicycle and when they reached near the Sorghum (Jowar) farm of one Kunwar Pal of Chakarpurwa at about 4 p.m. in the evening, accused/appellant no.1-Shiv Pratap Singh armed with Kanta and his son accused/ appellant no.2-Vijay Vikram Singh armed with Lathi challenged them (informant and his brother Vijay Bahadur Singh Pradhan) and said that ^^?ksj dj ekj Mkyks nq'eu vkt tkus u ik,** . Thereupon, appellant no.3- Kalicharan armed with lathi, appellant no.4-Nanhey armed with Banka, appellant no.5-Ram Autar armed with Kanta and other two other persons armed with lathi, to whom identified by him by their face but not by name, came out from Sorgum (Jowar) field and started assaulting the brother of the informant Vijay Bahadur Singh (deceased). Thereafter, informant-Lal Bahadur Singh (P.W.1) and his brother Vijay Bahadur Singh (deceased) raised alarm and on hearing their alarm, Raj Kumar, son of Hardayal and Vishwanath Singh son of Thakur Bux Singh, r/o Kuluwapur, who were ploughing their field nearby and one Ram Saroop Singh (P.W.2), son of Ujagar Singh, who was going towards his home from Bilgram, came at the place of occurrence and they all asked the accused persons not to assault Vijay Bahadur Singh (deceased) and also challenged them. Thereafter, appellant No.3-Kalicharan started assaulting the informant- Lal Bahadur Singh (P.W.1) with lathi, as a consequence of which, he also sustained injuries on his left hand wrist, elbow and arm and on right leg.

It has also been stated in the F.I.R. by the informant-Lal Bahadur Singh (P.W.1) that about five years ago from the date of the incident, his aunt Smt. Bittan Devi, who is the samdhin of appellant no.1-Shiv Pratap Singh and mother-in-law of appellant no. 2-Vijay Vikram Singh, was murdered, in which his brother Vijay Bahadur Singh (deceased) was named as accused but was later on acquitted by the competent Court. On account of