RADHEY SHYAM Vs. STATE OF UP

JUDGEMENT

(1.) Abovementioned appeals are being disposed of by this common judgment as both the appeals are arising out of the same judgment and order dated 26.11.1997 passed by the District & Sessions Judge, Nainital in Sessions Trial No. 23 of 1993 and Sessions Trial No. 24 of 1993. Appellants-Radhey Shyam and Chandra Mohan, Mukesh, Harish Chandra sons of Radhey Shyam alongwith Ganeshwati wife of Radhey Shyam stood trial for the offences under Sections 147, 148, 302/149 of the Indian Penal Code, 1860 (in short I.P.C.). The learned trial court, after taking into consideration the evidence and material available on record acquitted Ganeshwati of all the charges levelled against her while the other four accused have been convicted for the offences punishable under Section 302 read with Section 34 of the I.P.C. and sentenced for life imprisonment and a fine of Rs. 1,000/- each. In default of payment of fine they have been ordered to further undergo one month's imprisonment. It is worth mentioning at the outset that accused Radhey Shyam and Mukesh had died during the pendency of the appeal.

(2.) Brief facts of the case as per the prosecution are that family of accused Radhey Shyam and family of deceased were engaged in litigation with regard to some land for quite sometime. As per complainant Sukhvinder, his family, was in possession of the land but the accused party tried to take forcible possession on 10th December 1991. When his father Kartar Singh resisted the accused, quarrel (Marpeet) took place between the parties and accused Radhey Shyam reported the matter to the police. Kartar Singh was arrested but released on bail. On 17th December 1991 Kartar Singh at about 1:00 p.m. was sitting in the hut for the security of his fields, Sukhvinder Singh alongwith one Balbir Singh had also reached the fields as he had brought the meals for his father. He heard the shrieks of his father on the eastern side of the hut and found his father lying on the earth. Accused Ganeshwati was shouting that "Sardar be not left alive". Accused Radhey Shyam was armed with single barrel gun, his son Harish and Mukesh were armed with Ballam shaped lathi and his third son Chandra Mohan was armed with Kanta. Radhey Shyam was giving injuries to Kartar Singh with the butt of his gun while other accused were causing injuries with their respective weapons. The occurrence was also witnessed by Balbir Singh, Chanchal Singh and Harbansh Singh. On hearing the noise of Kartar Singh they had reached the spot to rescue him and on seeing them all the accused ran away. One of the co-villager, Milkiyat Singh telephonically informed the police station Rudrapur at 1.07 p.m. about the quarrel (Marpeet) taking place in the fields of village Fazalpur Ourala. One Sub Inspector alongwith few constables were dispatched from the police station to place of occurrence. Injured Kartar Singh was removed to the hospital in the police jeep, however before reaching the hospital Kartar Singh succumbed to his injuries. Complainant Sukhvinder Singh submitted a written complaint (Ex. Ka-2) in police station Rudrapur on the basis of which Chick F.I.R. (Ex. Ka-10) was recorded at 2:30 p.m. and G.D. report (Ex. Ka-11) was also entered in this respect at 1:30 p.m.

(3.) Investigation was handed over to Senior Sub Inspector Rajendra Singh (PW-5), who reached the spot and prepared the inquest report (Ex. Ka-1). The dead body of Kartar Singh was sealed in a parcel and sent for postmortem. On the next day site plan (Ex. Ka-6) was prepared. The bloodstained earth and simple earth were lifted from the place of occurrence and taken into possession vide memo Ex. Ka-7.