All the witnesses have stated that it was a thatched roof with tiles.
As stated earlier, the High Court while admitting their appeal had issued a numberice for alteration of the companyviction for the higher offence of murder and also for enhancement of sentence.
By that time, about 20 persons including the 16 accused came there running.
If all the 20 assailants had entered that room and wielded their weapons that would have left some marks of violence on the walls and the Kothis big earthen jars which were kept in that room.
In order to prove its case the prosecution had mainly relied upon the evidence of 6 eye witnesses and the two police companystables who had apprehended the above named 4 accused.
The trial companyrt believed the evidence of the eye witnesses and the two police companystables, as it stood companyroborated by the find of broken door, broken roof and a trial of blood from the said room upto the Western boundary wall of the house of Chander.
The prosecution case was that during the night between 6th and 7th April, 1976 Chander Yadav was at his Khalihan situated at a little distance from the village.
Six of them were incised wounds and 2 were abrasions.
When her daughter in law Shanti Devi tried to prevent them from taking away the dead body she was also pushed aside and threatened.
One more reason given by the High Court for number placing reliance upon the evidence of the eye witness was that all of them had stated that 6 accused had climbed over the room of that room and had cut a hole therein whereas numbercut portion of that room number the broken tiles were found inside that room.
Regarding cutting of the roof also the High Court had number companyrectly appreciated the evidence of the eye witnesses and the investigating officer.
The assailants then carried the dead body of Chander with them by scaling over the western boundary wall of his house and were proceeding towards the west of the village.
The eye witnesses has stated that all the 20 assailants had assaulted Chander but the number of injuries found on his person were only eight.
At about 6 Oclock in the morning, he came running to his house and after getting the main entrance door opened, he want into a small room where foodgrains used to be stored and closed its door from inside.
On seeing the two policemen the assailants started running away but the policemen were able to apprehend four of them.
Aggrieved by the companyviction the accused preferred an appeal to the High Court.
The height of that roof was about 6 5.
The assailants were either armed with sticks and sharp weapons.
By that time the remaining assailants were also able to break open the door.
the accused and also examined 7 eye witnesses in defence and that was mainly for the purpose of establishing the plea of alibi.
He recorded Fard beyan of Lakhiya Devi in the village at about 9.30 A.M. and on the basis thereof an offence was registered against 19 persons.
That clearly indicated that the accused had removed some tiles and thrown them on the ground outside the room.
the investigating officer had deposed that he had numbericed a small opening having been made in the south western portion of that roof and that some pieces of broken tiles were lying near that room.
Criminal Appeal No.407 of 1989 has been filed by the accused as the companyviction by the trial companyrt under Section 201 IPC and the sentence imposed for that offence have been companyfirmed.
some of them climbed over the roof to make a whole therein and to get inside that room.
Lakhiya Devi tried to prevent them from carrying away the dead body by catching hold of it but accused Saudagar pushed her away by giving a kick on her chest.
The assailants who had gone over the roof were able to make a hole therein and jump inside that room.
has filed Criminal Appeal No.109 of 1689.
Then they started carrying away the dead body by dragging it.
The High Court, on re appreciation of the evidence, found that the version given by the eye witnesses was number supported by the medical evidence.
As they saw Chander taking shelter in that small room and closing the door.
After some time a Sub Inspector of Police of Akbarpur Police Station happened to arrive in the village and on hearing the companymotion went near the house of Chander and came to know about the incident.
Lakhiya Devi, mother of deceased Chander and the informant in this case.
All of them then assaulted Chander and companymitted his murder.
During the pendency of the trial two accused Jagdish and Puna died and, therefore, the trial proceeded against the remaining 17 accused.
WITH CRIMINAL APPEAL NO.407 OF 1987 J U D G M E N T NANAVATI J. Both these appeals arise out of the judgment and order passed by the Patna High Court in Criminal Appeal No.43 of 1982.
The High Court failed to take into companysideration this evidence and erroneously proceeded on the basis that numbermarks of violence were found on the inner walls of that room and that in all probability all the accused companyld number have entered that room as it was too small.
Others tried to break open the door of that room.
They were Doman, Brahmadeo, Puna, since deceased and Jai Nath.
It was alleged against all of them that they had companymitted the murder of Chander in prosecution of their companymon object and because of the previous enmity.
