JUDGEMENT

Dr. A. S. Anand, J. : - For an occurrence which took place at about 11.30 A.M. on 29th September, 1978, in the Bazar in village Barauli, District Gopalganj, 11 accused persons were sent up to face their trial for offences under Ss. 302/149/148, IPC. The First Information Report in respect of the occurrence was lodged on 29th September, 1978 at police station, Barauli on the statement of Paras Nath Choubey (PW 6) brother of the deceased, recorded at the hospital. The learned Additional Sessions Judge vide judgment and order dated 22nd July, 1983 acquitted Mishri Bhaghat but convicted the remaining 10 accused for offences under Sections 302/149/148, IPC. Each of the 10 accused was sentenced to undergo imprisonment for life for an offence under Ss. 302/149. No separate sentence was imposed on any one of the accused for an offence under S. 148, IPC. Against their conviction and sentence, all the 10 convicts filed three different set of appeals. The Division Bench of the High Court vide judgment and order dated 24th August, 1995 acquitted Sarwa Prasad (appellant No. 5 in the High Court). The conviction and sentence of the remaining 9 convicts was, however, maintained. By Special Leave 6 of the convicts have filed three separate appeals in this Court. Three convicts have not filed any appeal against their conviction and sentence. All the three appeals are being disposed of by this common judgment since they arise out the common judgment and order of the Courts below. Prabhunath Prasad has filed Criminal Appeal No. 1827 of 1996 while Bhola Bhagat is the appellant in Criminal Appeal No. 1826 of 1996, the remaining four convicts have filed Criminal Appeal No. 1828 of 1996.

2. According to the prosecution case, on the fateful day Parasnath Choubey (PW 6) along with his brother Ram Naresh Choubey (deceased) went to the shop of Anish Haider (PW 5) for purchasing some cloth. After making the purchase, when they reached near the shop of Jagat Prasad, PW 6 saw Mishri Bhagat standing in a lane near the medicine shop. He directed the remaining accused who were armed with weapons like Dab, Bhala and Farsa to assault the complainant party. While the first informant PW 6 managed to escape, the accused surrounded his brother and assaulted him, as a result of which Ram Naresh Choubey fell down on the ground.On raising an alarm a number of persons including Jita Manjhi (PW 1), Bindeshwari Prasad (PW 3), Rajendra Choubey (PW 4), Anish Haider (PW 5), Shaukat Ali (PW 8) and Damodar Choudhary arrived at the scene of occurrence. After the appellants had assaulted the deceased they fled towards the east. PW 6 came near his brother but found him unconscious with bleeding injuries on different parts of his body. He removed him to Barauli hospital on a cart. On intimation being sent from the hospital to police station, Barauli, Abdul Jalil (PW 9) arrived at the hospital and recorded the statement of PW 6 since the injured was in an unconscious state. The injury report of Ram Naresh Choubey was prepared. On the advice of the Doctor, the deceased was removed to Gopalganj hospital. PW 9 returned to the police station and drew up a formal FIR for offences under Section 307, IPC etc. The investigation was taken in hand and site inspection carried out. Blood stained earth was seized from the place of occurrence and was subsequently sent for chemical examination. At about 10.00 p.m., the Investigating Officer received information that the injured had succumbed to his injuries in Gopalganj hospital. The case was thereupon converted to one under Section 302, IPC. An inquest was held at Gopalganj hospital the same day. Thereafter, the post-mortem was conducted by Dr. Lakhi Chand Prasad (PW 7). As many as 17 ante-mortem injuries, all cut wounds, were found on the body of the deceased. After close of the investigation the appellants were charge-sheeted, tried and convicted as already noticed. 3. At the trial all the witnesses except PW 1, PW 3, and PW 4 turned h