SACHCHEY LAL TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) These two appeals are interlinked having their foundation on a judgment of the Allahabad High Court. Appellant Sachchey Lal Tiwari (in Criminal Appeal No.270 of 2001) and Bachchey Lal Tiwari (respondent No.1 in Criminal Appeal No. 271 of 2001 filed by the State of Uttar Pradesh) faced trial for alleged commission of offences punishable under Section 302 and Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC). Both were found guilty and accordingly convicted while death sentence was imposed on the former, life sentence was imposed on the latter. Reference was made to the High Court for confirmation of the death sentence and appeals were filed by the accused persons. By the impugned judgment High Court altered the sentence to life sentence for the former and directed acquittal of the latter.

(2.) Facts giving rise to the prosecution of the two accused are that the complainant Achhaiber Misra (PW-I) and both the accused are residents of Village Ledupur within the circle of police station Sarnath District Varanasi in Uttar Pradesh. The agricultural fields of the two sides also adjoin each other near the old brick kiln towards east and south of the village. The ground level of the field of complainant Achhaiber Misra is slightly higher than the level of the plots of the appellants. On 3-11-1995 at about 6.45 A.M., the accused persons Sachchey Lal Tiwari and Bachchey Lal Tiwari sons of Mahajan Tiwari and Pintoo grand-son of Mahajan Tiwari were dismantling the demarcating line (Mend) between the fields of the complainant Achhaiber Misra and the accused. The complainant Achhaiber Misra witnessed it and he along with his sons Vijai Shanker Misra and Surender Nath Misra (hereinafter referred to as deceased by their respective names) reached near the field and asked the accused-not to dismantle the demarcating line of the field. There was exchange of hot words between the two sides. Pintoo grandson of Mahajan Tiwari took out a pistol and handed it over to the accused Sachchey Lal Tiwari and then Pintoo and Bachchey Lal Tiwari exhorted by saying that the complainant side should be killed. On it Sachchey Lal Tiwari, accused fired with the pistol at deceased Vijai Misra and deceased Surender, as a result of which both sustained fire arm injuries and died instantaneously on the spot. The occurrence was witnessed by Prem Nath Misra, Rama Kant Misra (PW-2) and other village persons and thereafter the two accused and Pintoo ran away from the scene of occurrence, leaving behind the dead bodies. Complainant Achhaiber Misra went to the police station Sarnath in district Varanasi and lodged a written report (Ex. Ka-1) there at about 8.15 A.M. On it G.D. entry was made at the police station and a case against the appellants was registered. The Investigating Officer, S.I. Sri Sita Ram Chaudhary (PW-6) reached the scene of occurrence. He inspected the site and prepared the site plan Ex. Ka-6. Thereafter he recorded the statements of the witnesses and took the sample and bloodstained earth from the scene of occurrence and also prepared to panchayatnamas of the dead bodies. The dead bodies were sent to District Hospital, Varanasi where post mortem examination was conducted on 4-11-1995 vide post mortem reports Ext. Ka-17 and Ka-18.After completing necessary formalities of investigation, charge-sheet was submitted against the appellants who pleaded not guilty to the charges and claimed to be tried. The defence of the accused was that they have been falsely implicated in this case due to previous enmity and ill-will.

(3.) In support of its case the prosecution examined seven witnesses in all. Achhaiber Misra (PW-1), Rama Kant Misra (PW-2) were claimed to be eye witnesses. The defence also examined Yagya Narain Misra (DW-1) and Prem Nath Misra (DW-2). The learned lower court scrutinized the entire evidence on record, believed the prosecution theory, convicted the accused and sentenced them as above. The High Court by the impugned judgment upheld conviction of Sachchey Lal Tiwari but was of the view that life sentence was the proper sentence. It held the evidence to be inadequate so far as accused Bachchey Lal is concerned, and accordingly directed acquittal.