STATE OF UTTAR PRADESH Vs. HARBAN SAHAI

JUDGEMENT

(1.) This appeal by special leave is by the State of Uttar Pradesh challenging the acquittal order passed by a division bench of the Allahabad High court in a murder case. The Sessions court had convicted four accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced all of them to imprisonment for life and it was on their appeal that the conviction was reversed. The four accused were arrayed in this appeal as respondents, but first respondent Harban Sahai passed away during the pendency of this appeal. So the case was considered only as against the remaining three respondents. They are 2nd accused-Sarwan Sahai, 3rd accused-Virendra and 4th accused-Virnlesh.

(2.) The genesis of the events which led to the occurrence in this case was the murder of Virendra's father (Shyam Manohar) in 1976. In that murder case Public Witness 1 (Shashi Bhushan) and his uncle (Jagdish Prasad - the deceased in this case) were challaned by the police as accused which ended in their conviction by the trial court. They filed an appeal before the Allahabad High court. During the pendency of that appeal their sentence was suspended and they were released on bail just a couple of days prior to the incident in this case. First accused (Harban Sahai) and second accused (Sarwan Sahai) are the nephews of Shyam Manohar. The fourth accused (Vimlesh) is his grandson. As pointed out above, third accused (Virendra) is the son of Shyam Manohar.

(3.) The incident in this case happened on 16/1/1978. Prosecution version is thus: Jagdish Prasad (deceased) and his nephew Shashi Bhushan (Public witness 1 were walking through the sugarcane field belonging to one Maiku. The time was then around 4.30 p. m. They saw the fourth accused emerging from the north of that field. First accused (Harban Sahai) and fourth accused (Vimlesh) had guns with them and others had lathis. Seeing the deceased and Shashi Bhushan the third accused (Virendra) yelled out that they would avenge for the murder of their father. Sensing the onrushing danger Public Witness 1 and the deceased scampered away, but they were chased by the assailants. A-1 (Harban Sahai) and A-4 (Vimlesh) fired their guns and Shyam Manohar fell on the ground, while Public Witness 1 succeeded in escaping by running towards a different direction. Second accused (Sarwan Sahai) and third accused (Virendra) went near the fallen victim and lambasted him with sticks. When some local people rushed to the scene the assailants made their escape good. Jagdish Prasad was taken in a bullock-cart to the hospital but on the way he breathed his last.