STATE OF U P Vs. ATUL SINGH

JUDGEMENT

(1.) Challenge in these appeals is to the judgment of a Divisional Bench of the Allahabad High Court directing-acquittal of the respondents. Respondent Sanjay Vishwakarma was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') whereas the other two accused persons were tried and convicted for the offence punishable under Section 302 read with Section 34, IPC.

(2.) Learned Additional Sessions Judge, Basti had convicted the respondents who preferred three separate appeals before the High Court. By the impugned judgment the High Court directed their acquittal.

(3.) Prosecution version in a nutshell is as follows : On 21-11-1998 Radhey Shyam Pandey was at his house situated at Avas Vikas Colony District Basti and his son Ajay Kumar alias Pintu returned back home from the city and told him that a scuffle took place between him on one hand and Sanjay Vishwakarma, Atul Singh and Brij Kishore Singh alias Dimple on the other in front of A P N Degree College; and at that time he was accompanied by Vikas Singh and Sunil Kumar Verma and that his opponents were in search of him in order to kill him. Then Radhey Shyam Pandey along with his son Ajay Kumar alias Pintu accompanied by Vikas Singh and Sunil Kumar went from his house in order to make a complaint to the principal of APN Degree College. When they reached near the PCO in the pavement leading to the main road accused Sanjay Vishwakarma, Brij Kishore Singh alias Dimple and Atul Singh sighting Ajay Kumar exhorted that he should be killed. Thereupon, Ajay Kumar intended to run away by turning, but Sanjay Vishwakarma fired at him with country made pistol and on receiving firearm injury Ajay Kumar fell down and all the three miscreants ran away on the motor cycle parked nearby. At that very time one Dina Nath Pandey and Udai Shankar Shukla reached there and tried to catch hold of the miscreants but they succeeded in making their escape good. Immediately thereafter Radhey Shyam Pandey and his wife Smt. Anirudh Kumari took their injured son Ajay Kumar in a Jeep to the District Hospital, Basti. But by the time they reached the Hospital, injured Ajay Kumar succumbed to fatal injuries sustained by him in the said incident. Then Radhey Shyam Pandey, father of the deceased went to the Police station Basti Kotwali, District Basti and lodged an FIR of the occurrence with the Police there at about 12.30 p.m. The Police registered a crime against the accused under Section 302 IPC and started the investigation. After completing the investigation the Police submitted charge sheet against the accused accordingly. As accused pleaded innocence, trial was held. Prosecution examined eleven witnesses to further its case. The respondents examined three witnesses to substantiate their claim of innocence. The trial Court placed reliance on the evidence of Radhey Shyam Pandey (PW1) who was an eye witness and directed conviction. In appeal the High Court primarily relied on four circumstances to direct acquittal.