OM PRAKASH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These appeals by special leave are directed against the dismissal of Criminal Appeals Nos. 1918 and 1923 of 1963 by a Division Bench of the Allahabad High Court. Those appeals in the High Court were filed against the conviction of nine accused persons, Om Prakash (A-1), Anoop Singh (A-2), Sheo Gopal (A-3), Raj Narain (A-4), Chandra Prakash (A-6), Mool Chand (A-12), Beni Singh (A-16), Ram Pal (A-17) and Lajjar Ram alias Raja Ram (A-18) under S. 396 I. P. C. and the sentence of imprisonment for life awarded to them by the learned Sessions Judge, Kanpur-Etawah at Kanpur in Sessions Trial No. 172 of 1969, in which in all 18 accused persons were tried. The trial Court acquitted the other nine accused, Bhoop Singh (A-5), Virendra (A-7), Ramadhin (A-8), Ranjit (A-9), Chhotay Lal (A-10), Chunni Lal (A-11), Bhanu Prakash (A-13), Dhani Ram (A-14) and Ram Gopal (A-15) in the alleged dacoity with murder at the house of Mauji Lal, Pradhan in Makhauli village, at about 1 A.M. in the night of 16/17-2-1968. In that incident Mauji Lal died and his wife Ram Shree (P. W. 2), Parasuram (P. W. 7) and P. W. 2's brother Ram Shankar (P. W. 8) are stated to have sustained injuries.

(2.) The case of the prosecution was this:There was enmity between the deceased Pradhan Mauji Lal and his brother Baij Nath (P. W. 1) on one hand and the appellants on the other, eversince the deceased Mauji Lal, fought an election battle in 1955 with Mauji Lal, the father of Om Prakash (A-1) and Bhagwati Prasad, the father of Raj Narain (A-4). There were several cases between the parties. About a month before this occurrence, Mauji Lal had reported by Exh. Ka-7 dated 22-1-1968 that accused persons Om Prakash (A-1) and Sheo Gopal (A-3) had committed theft of timber belonging to the village school managed by him. A few days later on 26-1-1968 Mauji Lal had complained before the Sub-Divisional Magistrate, Ghatampur that Mool Chand (A-12) forcibly occupied Gaon Sabha land. In 1967 there was rioting in the village, to which the prosecution party and accused belong. In that rioting one Ram Sanehi was murdered on one side and Kanwar Lal was murdered on the other side, and two cases were registered, and Om Prakash (A-1), Sheo Gopal (A-3), Raj Narain (A-4), Ranjit (A-9), Chhotay Lal (All), Mool Chand (A-12), Bhoop Singh (A-5), Rampal (A-17), Lajjar Ram (A-18) and others are accused in one case while in the other case the deceased Mauji Lal and 14 others including Mauji Lal's brother Baij Nath (P. W. 1) are accused and those cases were pending even on the date of the occurrence in this case. Om Prakash (A-1), Anoop Singh (A-2) and Sheo Gopal (A-3) are brothers. Raj Narain (A-4), Bhoop Singh (A-5) and Chandra Prakash (A-6) are brothers. Mool Chand (A-12) and Bhanu Prakash (A-13) are brothers, Beni Singh (A-16) is nephew of Dhani Ram (A-14) and Ram Gopal (A-15). Ram Pal (A-17) and Lajjar Ram alias Raja Ram (A-18) are cousins.

(3.) On the moon-lit night of 16/17-2-1968 deceased Mauji Lal who was Pradhan of the village and his wife Ram Shree (P. W. 2) and their children were sleeping in their house in Makhauli village, Mauji Lal in the western Kotha and P. W. 2 and her children in the eastern Kotha, between which there is a barotha. There was a lighted lantern hanging from a peg at a height of 6 feet from the floor on the eastern wall of the eastern Kotha. Ram Shankar (P. W. 8) the brother of Ram Shree (P. W. 2) who was assisting his deceased brother-in-law Mauji Lal in the cultivation of his lands was sleeping in a tin shed situate west of the western Kotha. The deceased Mauji Lal and his wife Ram Shree (P. W. 2) woke up on hearing some commotion when the miscreants who entered the eastern Kotha of the house were breaking open the northern door, P. W. 2. raised the wick of the lantern, material Exh. III, which had been lowered previously, and there was sufficient light in the Kotha for recognising the miscreants. Mauji Lal had come into the eastern Kotha before its northern door was broken open by the miscreants. Om Prakash (A-1), Sheo Gopal (A-3), Anoop Singh (A-2), Rai Narain (A-4), Chandra Prakash (A-6), Mool Chand (A-12), Beni Singh (A-16), Ram Pal (A-17) and Lajjar Ram alias Raja Ram (A-18) entered the eastern Kotha after breaking open the northern door with a Kulhari, Om Prakash armed with a pistol, and the others armed with Kanta, ballas, kulhari, lathi and pistol. A pistol shot was fired through the opening in the door before the miscreants entered the eastern Kotha. These nine accused persons, Om Prakash (A-1), Anoop Singh (A-2), Sheo Gopal (A-3), Rai Narain (A-4), Chandra Prakash (A-6), Mool Chand (A-12), Beni Singh (A-16), Ram Pal (A-17) and Lajjar Ram alias Raja Ram (A-18) severely assaulted Mauji Lal who died at the spot as a result of the injuries sustained by him. Sheo Gopal (A-3), Chandra Prakash (A-6), Beni Singh (A-16), Ram Pal (A-17) and Lajjar Ram alias Raja Ram (A-18) assaulted P. W. 2 severely and ransacked the house for about 15 or 20 minutes and took away from that eastern Kotha and the adjacent box-room of the house ornaments, cash, clothes etc., valued at Rs. 2,700/-. Ram Shankar (P. W. 8) who was sleeping in the tin shed, as stated above, woke up on hearing the shouts and sound of gun-fire and saw accused Virendra (A-7) and Ramadhin (A-8) standing near his cot armed with lathis and they inflicted lathi blows on him. When he got an opportunity, Ram Shankar (P. W. 8) entered the house and concealed himself by the side wall near the door connecting the eastern Kotha and the barotha and witnessed what was happening inside the eastern Kotha. P. Ws. 2 and 8 could see the miscreants in the light of the lantern material Exh. III. Baij Nath (P. W. 1), Parasuram (P. W. 7) and others of the village woke up on hearing sound of gun-shot, and proceeded towards the house of the deceased Mauji Lal and stood under a neem tree in front of one Banwari Lal's house and concealed themselves in the chappra of one Motilal situate east of the deceased Mauji Lal's house. They saw the miscreants when they were departing from the scene, with the moon-light. The miscreants standing on the roof of Sham Lal's house earlier shot at Parasuram (P. W. 7) while he was standing in front of that house and he sustained gun shot injuries.