Daroga alias Ram Asrey and Others vs State of U.P.

Vishnu Sahai, J.—This appeal has been directed by Daroga alias Ram Asrey, Bhoga alias Gaya Prasad, Gopal and Bechey Lal against the judgment and order dated 17.8.1987 passed by the Sessions Judge, Unnao in Sessions Trial No. 80/87 whereby they have been convicted and sentenced in the manner stated hereinafter:

(i) u/s 302/34, I.P.C. to suffer imprisonment for life ; and

(ii) u/s 307/34, I.P.C. to suffer 10 years'' R.I.

The substantive sentences of the Appellants were directed to run concurrently.

It is pertinent to mention that during the pendency of the appeal Appellants Daroga alias Ram Asrey and Bhoga alias Gaya Prasad were reported to be dead. Consequently, a report was called for through Chief Judicial Magistrate, Unnao, who has confirmed this fact. Hence, their appeal would stand abated in terms of Section 394, Cr. P.C.

Shortly stated, the prosecution case runs as under:

The informant Chanda, P.W. 1 is a resident of village Badua Khera, which is situated within the limits of P. S. Gangaghat, district Unnao. The deceased Soney Lal, who was also a resident of village Badua Khera, was his uncle.

Appellant Bhoga alias Gaya Prasad is the father of the Appellant Daroga alias Ram Asrey. At the time of incident, Bhoga and Daroga were living in village Badua Khera. Appellants Gopal and Bechey Lal are associates of Appellant Daroga and at the time of incident were living in village Santa Khera, which is contiguous to village Badua Khera.

There was enmity between the deceased Soney Lal and Appellant Daroga alias Ram Asrey.

On 13.10.1986, at about 8.00 a.m., the informant Chanda P.W. 1, injured Hori Lal P.W. 2, the deceased Soney Lal and Ram Swaroop had gone to dig pits for sowing water-melons in the sandy area by the side of river Ganga. At about 6.00 p.m. while they were returning and had reached near the mend (structure of mud which demarcates fields) of Appellant Bhoga alias Gaya Prasad''s sugarcane field, Appellants Bhoga alias Gaya Prasad, Gopal, Beche Lal and Daroga emerged from the said field. They asked them to stop and said otherwise they would be killed. At that time, Appellants Beche Lal and Daroga were armed with country made pistols and Appellants Gopal and Gaya Prasad with axe. Thereafter, Daroga and Beche Lal fired from country made pistols. The shot fired by the former struck Soney Lal and that by the latter Hori Lal. Thereafter Soney Lal ran. Ram Swaroop also tried to run but Gopal pushed him, as a result of which he fell down. All the four Appellants chased Soney Lal and felled him down in the ploughed field of Ram Chander. Thereafter Appellants Gaya Prasad and Gopal assaulted him with axe. Hearing the cries of the informant, a number of persons came from village, whereupon Appellant Daroga fired a shot in the air and ran away along with the other Appellants.

Thereafter the informant went near his uncle Soney Lal and found him dead. In the meantime, some other persons came. A cot was arranged for from the village and on the same the informant and others took Hori Lal, who was injured, on the road, where at the shop of Mewa Lal the informant dictated the F.I.R. of the incident to Pyare Lal, who after scribing it read it over to him. Thereafter, he affixed his thumb impression on it and along with it, Hori Lal and Ram Swaroop proceeded to Police Station, Gangaghat, where he lodged it.

The evidence of S.O., Mahendra Bahadur Singh P.W. 3 shows:

On 30.10.1986, at 9.35 p.m., in his presence Head Moharrir, Abdul Haleem registered a case on the basis of the F.I.R. (Exhibit Ka-1) lodged by Chanda P.W. 1. He immediately took over the investigation and recorded the statements of Chanda and Hori Lal. He thereafter left for the place of the incident, which he reached at 11.30 p.m. and where he found the corpse of Soney Lal. He took the same in his possession. Since arrangement of light could not be made at night, he could not perform the inquest on it. On 31.10.1986, in the presence of panchas, he performed the inquest and after sealing the corpse handed it over to Constable Rajendra Singh P.W. 6 for autopsy. Thereafter he recorded the statements of the witnesses and prepared the site plan. He recovered from the place of the incident one empty cartridge, which he seized under a recovery memo (Exhibit Ka-10) and also seized therefrom plain and blood stained earth, in two separate containers under a recovery memo (Exhibit Ka-11). He also recovered from different places nearby the place of incident three more empty cartridges and one tickli under a recovery memo (Exhibit Ka-12).

On 19.12.1986 he recorded the statements of the Appellants in District Jail, Unnao and thereafter submitted the charge sheet (Exhibit Ka-13) against them.

Going backwards, the injuries of Hori Lal were medically examined on 31.10.1986 at 12.50 a.m. by Dr. Shobh Nath P.W. 4 at District Hospital, Unnao. The evidence of Dr. Shobh Nath shows that Hori Lal was accompanied by a constable and he found the following injuries on him:

Multiple gun shot wound in an area of 16 cm. x 12 cm. on the front and lateral side of right thigh, size bearing 2.5 cm. x 1 cm. x muscle deep to 0.5 cm. x 0.5 cm. x skin deep, margins lacerated, inverted, fresh blood oozing, injury put under observation, advised x-ray of right thigh. Blackening and tattooing present. There were fifty injuries in number.

In the opinion of Dr. Shobh Nath, the said injuries could be caused by a country made pistol on 30.10.2003 at 6.00 p.m.

5A. It is pertinent to mention that Dr. Shobh Nath P.W. 4 also examined Ram Swaroop on 31.10.1986 at 12.45 p.m. but did not find any external injury on his person.

The autopsy on the corpse of Soney Lal was conducted on 31.10.1986 at 2.30 p.m. by Dr. Ashok Upadhyaya, P.W. 5, who found on it the ante-mortem injuries enumerated hereinafter:

(i) Incised wound 5 cm. x 1 cm. x bone deep on the right side of head, 10 cm. above right eye-brow. Right parietal bone found fractured underneath the injury.

(ii) Transversely placed incised wound of 10 cm. x 3 cm. x bone deep one cm. above the injury No. 1 on the head. Underlying both parietal bones found fractured and brain substance found cut beneath the injury.

(iii) Incised wound 12 cm. x 3 cm. x bone deep extending from the left side of the face just adjoining to left lateral angle of the mouth to the left ear. Left lower jaw found fractured underneath the injury.

(iv) Incised wound 12 cm. x 5 cm. x bone deep on the left side neck extending from its root to the lobule of the left ear.

(v) Incised wound 16 cm. x 4 cm. x bone deep on the base of the head in occipital region extending from the base of the left ear to back of the right ear, horizontally placed. Underlying occipital bone found fractured. Brain substance found cut beneath the injury.

(vi) Incised wound 6 cm. x 2 cm. x muscle deep on the back of the neck, on the nape, on the right side, 4 cm. below injury No. 5.

(vii) Abrasion 1/2 cm. on the left side chest on the front at 7 O''clock position, 9 cm. away from the left nipple.

(viii) Gun shot wound of entry on the back of the left side of the chest present in the scapular region, 6 cm. lateral to vertebral column and 15 cm. below the root of the neck, 2-1/2 cm. x 1-1/2 cm. in size, oval in shape, margins inverted, blackening and tattooing present. Underlying fifth left rib found fractured beneath the injury. Direction of the wound was forward and upward. Two pieces of wadding and 36 small pellets found in the chest cavity and substance of the left lung sent to S. P. Unnao in a sealed packet.

On internal examination Dr. Upadhyaya found skull fractured beneath ante-mortem injury Nos. 1, 2, 3, 4 and 5 ; brain cut beneath ante-mortem injury Nos. 2 and 5 ; fifth left rib fractured beneath injury No. 8 ; left lung lacerated and ruptured ; 16 pellets in left lung ; and two pieces of wadding and 20 small pellets in chest cavity.

The cause of death spelt out in the post-mortem report was shock and haemorrhage as a result of the ante-mortem injuries suffered by the deceased.

The case was committed to the Court of Sessions in the usual manner, where the Appellants were charged for offences punishable under Sections 302/34, I.P.C. and 307/34, I.P.C. They pleaded not guilty to the charges and claimed to be tried.

During trial, in all, the prosecution examined six witnesses. Two of them, namely, Chanda P.W. 1 and Hori Lal P.W. 2 were examined as eye-witnesses. During cross-examination the former was suggested that he was not present on the place of the incident and learnt of the incident later and the latter that he and Soney Lal were assaulted in darkness and they could not recognise their real assailants. They denied the said suggestions.

The learned trial Judge believed the evidence of the eye-witnesses and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties and gone through the entire record and after the utmost circumspection are of the judgment that this appeal is devoid of substance.

It would become manifest from the above that the conviction of the Appellants is founded on the ocular account furnished by Chanda P.W. 1 and Hori Lal P.W. 2. We now propose giving our reasons as to why the same inspires confidence.

We begin with the evidence of the injured eye-witness Hori Lal P.W. 2 ; the star witness of the prosecution. His evidence shows: On the date of the incident, at about 8.00 a.m. he along with Chanda P.W. 1, the deceased Soney Lal and Ram Swaroop had gone to dig pits for sowing watermelons on the sandy side of river Ganga and the same evening, at about 6.00 p.m., while they were returning and had reached near the mend (structure of mud which divides fields) of the sugarcane field of Appellant Gaya Prasad alias Bhoga, Appellant Gaya Prasad alias Bhoga along with his son Appellant Daroga alias Ram Asrey and Daroga''s associates Appellants Gopal and Beche Lal emerged therefrom. Daroga and Beche Lal were armed with country-made pistols and Gaya Prasad and Gopal with axe. They asked them to stop and said otherwise they would be killed. Thereafter Beche Lal and Daroga fired from country made pistols ; the shot of the former struck him (Hori Lal) and that of the latter Soney Lal. In the meantime, Ram Swaroop tried to run, but he was felled down. Soney Lal ran but he was chased by all the four Appellants, who overpowered him in the ploughed field of Ram Chander. In the said field Appellants Gaya Prasad and Gopal belaboured him with axe. In the meantime, hearing their cries villagers came, whereupon Appellant Daroga firing in the air, along with the other Appellants, ran away.

As a consequence of the assault Soney Lal died on the spot. A cot was arranged from the village and on the same he (Hori Lal) was taken on the road, where at the shop of Mewa Lal the informant Chanda dictated his F.I.R. to Pyare Lal. Then Chanda, along with him and Ram Swaroop, proceeded to Police Station, Gangaghat, where Chanda lodged the F.I.R.

10A. We have gone through the statement of Hori Lal and make no bones in observing that it inspires confidence.

In the first place, he has explained his presence on the place of the incident. He stated that on the morning of 30.10.1986, at about 8.00 a.m., he, along with Chanda P.W. 1, the deceased Soney Lal and Ram Swaroop, had gone to the sandy portion of river Ganga to dig pits for sowing watermelons and the same evening at about 6.00 p.m. when they were returning and had reached near the medh of sugarcane field of Appellant Gaya Prasad, the incident took place.

Secondly, the manner of assault furnished by him is corroborated by medical evidence. He stated that the shot fired by Appellant Daroga from country-made pistol struck the deceased Soney Lal and that fired by Appellant Beche Lal from country-made pistol struck him. He also stated that Appellants Gopal and Gaya Prasad assaulted the deceased Soney Lal with axe. We have earlier seen that Dr. Shobh Nath P.W. 4, who medically examined him, found on his person fire-arm injuries, which we have reproduced in paragraph 5, and the autopsy surgeon Dr. Ashok Upadhyaya P.W. 5 found on the corpse of the deceased Soney Lal six incised wounds ; one abrasion ; and one gun shot wound of entry. It is pertinent to mention that the evidence of Dr. Shobh Nath shows that his injuries could have been caused by country-made pistol and that of Dr. Upadhyaya makes it manifest that the incised wounds suffered by the deceased could be caused by axe ; the abrasion by fall ; and the fire-arm injury by a country made pistol (in para 6 we have reproduced the ante-mortem injuries suffered by the deceased). We have earlier seen that the evidence of Dr. Shobh Nath and Dr. Ashok Upadhyaya shows that the injuries of Hori Lal and the deceased Soney Lal could be caused on 30.10.1986 at 6.00 p.m., at which time according to Hori Lal the incident took place.

10B. It is relevant to mention that although Hori Lal was extensively cross-examined, but his presence on the place of the incident could not be dislodged in any manner. It is pertinent to mention that in his cross-examination, his presence on the place of incident was not challenged and what was put to him was that on account of darkness he could not recognise those who assaulted him and Soney Lal. He denied the said suggestion.

For two reasons we are not inclined to accept this suggestion. Firstly a perusal of his injury shows the presence of blackening and tattooing, which means that he must have been fired from a distance of about three feet and therefore, would have had no difficulty in recognising his assailant. Similarly, his evidence shows that the deceased Soney Lal was with him when he (Soney Lal) was fired upon and since the evidence of the autopsy surgeon shows that the gun shot wound suffered by him (Soney Lal) was also accompanied by blackening and tattooing, he, for the said reason, would have had no difficulty in recognising his assailant.

Secondly, it should be borne in mind that his evidence shows that the Appellants were known to him from before the incident and they had instigated prior to assaulting him and the deceased. In such a situation, even if it is assumed for argument''s sake that the incident took place in darkness, he would have had no difficulty in recognising them because known people can be recognised by their gait ; timber of voice, etc. [see Kirpal Singh Vs. State of Uttar Pradesh, .]

It should be borne in mind that Hori Lal is an injured witness ; whose injuries are in consonance with the manner of assault furnished by him. A perusal of his injuries shows that they could not be manufactured and neither any suggestion was given to Dr. Shobh Nath, who medically examined him, that his injuries were manufactured.

For the said reasons, in our judgment, the evidence of Hori Lal P.W. 2 inspires confidence, and in our view, by itself is sufficient to sustain the conviction of the Appellants on both the counts. It is a trite that evidence should be weighed and not counted.

Fortunately, in this case we have plurality of ocular account in the form of that furnished by the informant Chanda P.W. 1. Since he was accompanying Hori Lal P.W. 2 and the deceased at the time of the incident and has furnished the same manner of assault as Hori Lal we accept his evidence for the aforesaid two reasons, which have weighed with us in accepting the evidence of Hori Lal. We do not want to burden our judgment by reiterating them.

13A. It is pertinent to mention that although Chanda was extensively cross-examined but his presence on the place of the incident could not be rendered suspicious in any manner.

In our judgment, the evidence of Chanda P.W. 1 also inspires confidence.

Assurance to the ocular account furnished by Chanda and Hori Lal is forthcoming by the prompt F.I.R. of the incident, which was lodged by the former. We have seen earlier that the incident took place on 30.10.1986 at about 6.00 p.m. and the F.I.R. was lodged on the same date at 9.35 p.m. by the former at Police Station Gangaghat, which was situated at a distance of seven kilometres from the place of the incident. It is pertinent to mention that in this F.I.R. the essential features of the prosecution case, including:

(a) the time of the incident ; (b) the cause of the incident ; (c) the names of the witnesses ; (d) the names of appellants ; (e) the weapons wielded by appellants ; (f) the manner of assault ; and (g) the place of the incident, have all been mentioned.

Learned Counsel for the Appellants strenuously urged that the F.I.R. was not lodged at the time alleged by the prosecution and is an ante-timed document for the reasons mentioned hereinafter:

(a) The evidence of the Investigating Officer shows that on 30.10.1986 no other F.I.R. of any cognizable offence was lodged and hence it was possible to ante-time it ;

(b) Although the Investigating Officer reached the place of the incident at 11.30 p.m. on the night of 30.10.1986 but the inquest was performed next morning. Had the F.I.R. been lodged on 30.10.1986, the inquest would have been performed the same night ;

(c) Chitthi majroobi (letter of request for medical examination) of Hori Lal and Ram Swaroop were on plain papers and not on the requisite form ; and

(d) In the inquest report in column of weapons (Column No. 3) pistol and axe have not been mentioned. Since they were mentioned in F.I.R. had the F.I.R. been in existence they would have been mentioned in inquest.

We have given our anxious consideration to the said reasons furnished by learned Counsel for the Appellants to stigmatise the F.I.R. as being belated and are constrained to observe that we do not find any merit in them.

So far as circumstance (a) is concerned the fact that it was possible to ante-time the F.I.R. does not mean it was ante-timed.

As regards circumstance (b) we find that the Investigating Officer has stated that since arrangement for proper light could not be made he did not perform the inquest on the night of 30.10.1986.

So far as circumstance (c) is concerned, in our view, there is no nexus in it and the F.I.R. being not lodged at the time alleged by the prosecution. In our view, it was remissness on the part of the Investigating Officer to have not prepared the chitthi majroobi on requisite forms.

As regards circumstance (d) we also find that it is on account of remissness of Investigating Officer. Since in the inquest all other things, including the sections on the basis of which the offence was registered at the police station and the names of Appellants have been mentioned, we say this. The Supreme Court in a plethora of decisions has held that on account of remissness in investigation credible ocular account cannot be brushed aside. To eschew prolixity we are only referring to one Chandrakant Luxman Vs. State of Maharashtra, .

For the said reasons, in our view, the F.I.R. is not ante-timed. On the converse, it is prompt and lends an enormous seal of assurance to the claim of the eye-witnesses of having seen the incident.

For the said reasons, we are of the judgment that the learned trial Judge acted correctly in convicting the Appellants for the offence punishable under Sections 302/34, I.P.C. and 307/34, I.P.C.

We would be failing in our fairness if before proceeding to the operative part of the judgment we do not advert to the principal submissions canvassed by Begum Sabiha Kamal, learned Counsel for the Appellants. She firstly strenuously contended that circumstances show that the incident did not take place at about 6.00 p.m. on 30.10.1986 but sometimes in the late hours of the same evening after it had become dark. She urged that on account of darkness the two eye-witnesses of the incident, namely, Chanda P.W. 1 and Hori Lal P.W. 2 could not recognise the real assailants and have falsely implicated the Appellants. To lend force to her submission, she contended that in their statements in trial court both Chanda and Hori Lal stated that Appellants Daroga and Beche Lal fired on the former (Hori Lal) and the deceased Soney Lal at the place where they were standing but in the F.I.R. Chanda and in his statement u/s 161, Cr. P.C. Hori Lal stated that they were fired upon while they were running. Learned Counsel for the Appellants urged that this change by them in their statements in trial court was brought to make their evidence in conformity with medical evidence. We regret we do not find any merit in this criticism. It is pertinent to mention that the firearm injury suffered by the deceased and injured Hori Lal could also have been caused while they were running. The firearm injury of the deceased was in the scapular region (behind back of chest) and that of Hori Lal was on the front and lateral of right thigh. In our view, it could have been caused if Hori Lal turned back, while running.

At any rate, we would do well to remember the ratio laid down by the Supreme Court in paragraph 12 of the case of Solanki Chimanbhai Ukabhai Vs. State of Gujarat, . In the said paragraph, the Supreme Court has observed thus:

Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." For the said reasons, this submission fails.

Secondly, Begum Sabiha Kamal urged that neither Chanda P.W. 1 in his F.I.R. nor Hori Lal in his statement u/s 161, Cr. P.C. stated that Bechey Lal''s fire struck him (Hori Lal) and Daroga''s fire struck Soney Lal and this in an improvement to fix the participation of both these Appellants. We regret we do not find any merit in this criticism. When Hori Lal was confronted with the said omission he replied that since the Investigating Officer did not ask him about it he did not state. We find his answer to be perfectly acceptable. As regards the non mentioning in F.I.R. is concerned it should be borne in mind that the F.I.R. is not an encyclopaedia.

Hence, this submission also fails.

Thirdly, Begum Sabiha Kamal urged that eye-witness Chanda has stated that Soney Lal was fired from "ek haath" and Hori Lal from 2-3 haath (in English one hand means about 2 feet). She urged that in view of the distance of firing blackening and tattooing should not have been present in Hori Lal''s injuries. We regret we do not find any merit in this criticism. Apart from the fact "2-3 haanth" would include a distance of four feet and blackening tattooing can be caused from the said distance, it should be remembered that rustic witnesses do not have any accurate idea of distance and therefore, the distances furnished by them should not be construed literally.

Hence, this submission also fails.

Fourthly, Begum Sabiha Kamal strenuously urged that there was no motive for Appellants Gopal and Beche Lal to commit the crime and therefore, they would not have committed it. She pointed out that the evidence of the informant Chanda P.W. 1 shows that there was enmity between the deceased Soney Lal and Appellant Daroga, who was the son of Appellant Gaya Prasad. She urged that neither the informant nor Hori Lal P.W. 2 have stated that the said Appellants had any motive to commit the crime.

We have reflected over the said submission and do not find it to be acceptable for the two reasons ; firstly because the evidence of the informant clearly shows that Appellant Gopal and Beche Lal were the friends of Appellant Daroga and therefore, on account of friendship may have joined hands with him and secondly because it is well-settled that motive relegates into background where there is creditworthy ocular account, as is the case here.

Hence this submission is also rejected.

Fifthly, Begum Sabiha Kamal contended that both the eye-witnesses are inimical and extremely interested witnesses. She urged that Chanda P.W. 1 apart from being the real nephew of Soney Lal admitted in cross-examination that about 6-7 years ago his grandfather''s cousin was murdered and Appellants Gopal and Beche Lal were prosecuted for it (though acquitted) and about the same time he and Soney Lal were prosecuted for assaulting Appellant Gopal and Appellant Beche Lal was a witness against them and they had been sentenced to 1-1/2 years'' R.I. in it. She also pointed out that Hori Lal P.W. 2 has admitted in his cross-examination that in the murder of Puran, who was the real uncle of the deceased Soney Lal, he had deposed for prosecution and the case had been acquitted.

We have reflected over the said submission and do not dispute that both the eye-witnesses were inimical and interested but way back in the year 1965, in the oft-quoted case of Masalti Vs. State of U.P., , the Supreme Court has held that the circumstance that witnesses are interested would only make the Court to evaluate their evidence with caution and not mechanically reject it. We have exercised the said caution and then reached the conclusion that the evidence of Chanda and Hori Lal inspires confidence.

Finally, Begum Sabiha Kamal urged that the learned trial Judge erred in convicting Appellant Beche Lal for the offence punishable u/s 302/34, I.P.C. She contended that the evidence of both the eye-witnesses shows that the shot fired by Beche Lal struck the injured Hori Lal and Beche Lal did not fire on the deceased Soney Lal. She contended that in these circumstances only an offence punishable u/s 307, I.P.C. would be made out against the Appellant Beche Lal.

We have reflected over the said submission and are constrained to observe that we do not find any merit in it. In our judgment, there is sufficient trustworthy evidence to show that the assault on both the victims, namely, Hori Lal and Soney Lal, was committed by all the four Appellants in furtherance of their common intention. In this connection, we would like to first advert to the F.I.R. which was lodged within three hours and thirty five minutes of the incident taking place (the incident took place on 30.10.1986 at 6.00 p.m. and the F.I.R. was lodged on the same evening at 9.35 p.m.), wherein it has been mentioned: that all the Appellants were waiting in sugarcane field of Appellant Gaya Prasad alias Bhoga ; on seeing the deceased Soney Lal, the injured Hori Lal, the informant Chanda and Ram Swaroop they shouted that they should stop otherwise they would be killed ; thereafter with country-made pistols Appellants Daroga and Beche Lal fired on Hori Lal and Soney Lal and when the deceased Soney Lal ran all of them chased him and in the field of Ram Chander Appellants Gaya Prasad alias Bhoga and Gopal assaulted the deceased Soney Lal with axe ; and on the arrival of villagers all the Appellants ran away. It is pertinent to mention that the evidence of both the eye-witnesses is also to the same effect. On these facts, we have no hesitation in concluding that this is a tailor-made case where Section 34, I.P.C. would have application, both in relation to the assault on Hori Lal, as also on the deceased Soney Lal.

Hence, this submission also fails.

In the result, we confirm the convictions of Appellants Gopal and Beche Lal for offences punishable under Sections 302/34, I.P.C. and 307/34, I.P.C. ; and the sentence of imprisonment for life and ten years'' R.I. respectively awarded to them thereunder, and dismiss their appeal. They are on bail and shall be taken into custody forthwith to serve out their sentence.

Since Appellants Daroga alias Ram Asrey and Gaya Prasad alias Bhoga died during the pendency of this appeal, the appeal preferred by them abates in terms of Section 394, Cr. P.C.