MATA PRASAD Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 22/10/1982 passed by the Lucknow bench of the Allahabad High court in Criminal Appeal Nos. 544 of 1976 and 545 of 1976 modifying the conviction and sentence passed by the learned Additional Sessions Judge, Gonda in Sessions Trial No. 222 of 1974. Nine accused persons including the six appellants in this appeal faced trial in the said sessions case on charges under S. 120-B, 148, 302 read with S. 149 and 147 Indian Penal Code for murdering one Radhey Shyam on 23/04/1974. The learned Sessions Judge convicted accused 1, 5 and 6 namely, Amrika, Nauranglal and Raja Ram under S. 120-B, 148, 302 read with Section 149 Indian Penal Code and sentenced them to suffer two years' rigorous imprisonment under Section 148 and the imprisonment for life under Section 302 read with Section 149 Indian Penal Code. No separate sentence was, however, awarded under Section 120-B Indian Penal Code. The learned Sessions Judge also convicted accused 3 Mata Prasad, accused 4 Bachcha Lal and accused 2 Ambar, under S. 147, 302 read with Section 149 Indian Penal Code and awarded sentence of one year's rigorous imprisonment for the offence under Section 147 and life imprisonment under Section 302 read with Section 149 Indian Penal Code. Accused 3 and 4 were also convicted under Section 120-B but no separate sentence was passed on that count. Accused 7 Kapil Deo, was also convicted under S. 147, 120-B and 302 read with Section 149 Indian Penal Code and one year's rigorous imprisonment was awarded for the offence under Section 147 and imprisonment for life for the offence under Section 302 read with Section 149 Indian Penal Code. No separate sentence was awarded under Section 120-B Indian Penal Code. Accused 8 Hara Prasad and accused 1 Arnrika were convicted only under Section 302 read with Section 149 Indian Penal Code and the learned Sessions Judge awarded life imprisonment for the said offence. The said accused persons preferred two appeals before the Lucknow bench of the Allahabad High court being Criminal Appeal Nos. 544 of 1976 and 545 of 1976. Both the said appeals were heard analoguously and were disposed of by a common judgment. Both the said criminal appeals were partly allowed. So far as accused 4 Bachcha Lal is concerned, the High court set aside the conviction under Section 120-B Indian Penal Code but upheld the conviction under S. 147, 302 read with Section 149 Indian Penal Code but on consideration of the facts that at the time of commission of the offence he was aged only 16 years, the High court suspended the sentence by giving benefit of Section 30 of the U. P. Children Act and directed to furnish personal bond of Rs. 5,000. 00 and two sureties of like amount one of such sureties to be furnished by an elder member of the family. The conviction under Section 120-B Indian Penal Code was set aside in favour of all the appellants. In both the said appeals the conviction and sentence passed by the learned Sessions Judge against Mata Prasad, Naurang Lal, Arnrika and Raja Ram under S. 148, 302 read with Section 149 Indian Penal Code were upheld by the High court. Accused 8 Hara Prasad and accused 9 Babu Lal, were acquitted in view of setting aside the conviction and sentence under Section 120-B Indian Penal Code. The conviction and sentence of accused 7 Kapil Deo, under S. 147, 302 read with Section 149 Indian Penal Code were upheld by the High court. As aforesaid, the instant appeal has been preferred by accused 1,2,3,5,6 and 7, namely, Amrika Amber, Mata Prasad, Naurang Lal, Raja Ram and Kapil Deo.

(2.) The prosecution case in short is that the appellants Amber and Amrika are real brothers and Naurang Lal is collateral of Arnrika while Raja Ram isservant of amrika and Kapil Deo was in the gang of amrika because he used to borrow money from him. Mata Prasad and Bachcha Lal were cousins and they were also close to Amrika who was an influential man in the locality. Hara Prasad and Babu Lal were also the friends of amrika. Arnrika was a chaukidar of the Police Station, Kotwali, Gonda. The deceased, Radhey Shyam, had taken three bighas land in the village from Radhika and Radhey Shyam had been put in possession of the said land and although Radhika had promised to execute the sale deed after consolidation, it was not done. Radhika later on sold the said land to the accused Hara Prasad about three years prior to the date of occurrence. The said Hara Prasad after one and a half years from the date of the said purchase had tried to take possession of the said land but such attempt was resisted by the deceased Radhey Shyam. In view of such purchase and attempts for dispossession, there was enmity between the deceased and Hara Prasad. It is the prosecution case that Hara Prasad and Babu Lal planned to kill Radhey Shyam and on the evening of 22/04/1974, the accused Mata Prasad, Ambar, Naurang Lal, Raja Ram and Kapil Deo, Hara Prasad and Babu Lal conspired that Kapil Deo would bring Radhey Shyam and he would be killed. On 22/04/1974, Radhey Shyam had gone to Gonda but had not returned by 10 o'clock at night and the family members had gone to sleep. Next morning on 23/04/1974, at about 7. 00 a. m. Radhey Shyam and Kapil Deo were seen coming from the east of the shop of Amrika by Public Witness 3 Muni Ram. The said witness Muni Ram, had also seen Radhey Shyam and Kapil Deo entering the shop of Arnrika where Mata Prasad, Bachcha Lal, Amber, and Kapil Deo were armed with lathis, Amrika had a gun, Naurang Lal had a ballam and Raja Ram carried a pharsa and all of them started assaulting Radhey Shyam with their respective weapons. On seeing the assault on Radhey Shyam, Public Witness 3 rushed to the house of Baijnath which was at a distance of 1 1/2 furlongs and informed them that Radhey Shyam was being assaulted by the said accused persons. On hearing of the said assault, Public Witness 1 Ballu, who is the sister of Radhey Shyam and Public Witness 2 father of Radhey Shyam, rushed towards the shop of Arnrika along with Public Witness 3 Muni Ram, and on the way they met one Nakched who had also accompanied them. They, however, could not find anyone in the said shop but on moving little further they saw that the body of Radhey Shyam was being dragged on by means of electric wire which was tied on the waist of Radhey Shyam. The accused, Kapil Deo and Amber held the hands of Radhey Shyam and Mata Prasad and Bachcha Lal held his legs. Amrika was found armed with the gun, Naurang Lal had ballam and Amber and Kapil Deo carried lathis. The body was being carried towards the chak road which was to the north of the shop of Amrika. On the cry being raised, the appellants and other accused ran leaving the body of Radhey Shyam. When Ballu, Baijnath and Muni Ram reached, they found that Radhey Shyam was already dead.

(3.) A written report about the incident was dictated by Baijnath to Muni Ram who transcribed the same and Baijnath lodged the report at the Police Station, Kotwali and the case was registered by the Head Constable Baldeo Prasad Pathak at about 11. 00 a. m. on April 23, 1974. Kalika Singh, Station Officer, Kotwali, was present at the time of lodging the report. He interrogated Baijnath and prepared the inquest of the body of Radhey Shyam being Ext. Ka-3 and despatched the body for post-mortem examination. The Investigating Officer found blood in the field of Samokhan where the body was lying and theinvestigating Officer collected the same and prepared the recovery memo. He also noticed the blood in the shop of Amrika and also from the chak road up to the shop of Amrika. The bloodstained earth and plain earth from the respective places were collected and the recovery report was prepared. In the shop of Amrika, he found a pair of Kharaon blades of pharsa, a gunny bag and wooden part of gun which connects the barrel to the butt of the gun and the said articles were also seized and sealed by preparing the memos. The Investigating Officer searched the house of Amrika and Ambar and seized the gun after such search Public Witness 5 Dr Narendra Verma performed the post-mortem examination and prepared a report being Ext. Ka-7 and he found 17 injuries including incised wounds, punctured wounds and lacerated wounds. At about 11.45 a. m. on the date of occurrence, namely, on 23/04/1974, an information was received from the district hospital through memo Ext. Ka-9 that the accused Mata Prasad was present there and the police constables were sent to the hospital to keep watch and arrest him after making G. D. entry being Ext. Ka-21. The said Mata Prasad was arrested and locked up in the police lock-up at about 15.55 hrs on the same date. The accused Amrika was arrested and was locked up at abot 17.30 hrs on the same day and the other accused persons surrendered in court. The Investigating Officer interrogated prosecution witnesses and also the accused persons and prepared a site plan of the scene of occurrence. Later on further investigation was taken up by the Circle Officer Ram Nagina Singh, pw 9.