NAMWAR DUBEY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The four appellants herein and two others were tried by the Additional Sessions Judge, Gyanpur for offences punishable under S. 148, 302/149 and 307/149 of the Indian Penal Code. The trial ended with an order of conviction and sentence recorded against all of them. Aggrieved thereby they preferred an appeal in the High court which, as regards the appellants, was allowed only in part, in that their conviction under Section 148 Indian Penal Code was set aside but the other convictions were only altered to Sections 302/34 and 307/34 ipc. The remaining two convicts were, however, acquitted of all the charges.

(2.) Briefly stated, the prosecution case as narrated in the trial was that on 8/9/1977, at or about 8. 00 a. m. Kamla Shankar Dubey (Public Witness 1 accompanied by his brother Ram Surat Dubey (Public Witness 2 and uncle Loghar Dubey (the deceased) left their house for going to Bhadohi. When they reached Mirzapur-Bhadohi Road near the local market all the six accused persons, who were armed with various weapons including pistols, accosted them and, on the exhortation of Jadunath (since acquitted) , Siya Ram, Kanhaiya and Namwar (three of the appellants herein) started firing from their respective firearms causing injuries to Public Witness 2. All three of them then started running away in different directions only to be chased by the miscreants. While Public Witness 1 succeeded in his attempt the other two could not, as Public Witness 2 fell down hit by Rajvir (the other appellant) with a gandasa and Loghar, who had taken refuge in the shop of one Lalta, met with his death at the hands of the other miscreants. Thereafter Public Witness 1 went to the police station and lodged an information about the incident. SHO Surendra Bahadur Singh (Public Witness 5 took up investigation of the case and first went to the government Hospital Bhadohi where he recorded the statement of Public Witness 2. As Public Witness 2's condition was grave he was referred to the District Hospital, Varanasi and there a Magistrate recorded his dying declaration.

(3.) Pw 5 went to the scene of occurrence and after completing the inquest proceeding forwarded the dead body of Loghar to the government Hospital, Gyanpur for post-mortem examination. After examining the witnesses and completing other formalities of investigation he submitted charge-sheet and in due course the case was committed to the court of Session.