STATE Vs. MRITYUNJAY PANDEY

JUDGEMENT

(1.) THIS appeal, preferred by the State/appellant u/s 378 of The Code of Criminal procedure, 1973 (hereinafter to be referred as Cr. P. C), is directed against the judgment and order dated 06. 05. 1994 passed by assistant Sessions Judge, Haridwar in S. T. No. 377 of 1986, State Vs. Mrityunjay pandey and another, whereby the learned assistant Sessions Judge has acquitted the respondents Mrityunjay Pandey and Ram vilas for the offences punishable under sections 452 and 307/34 of The Indian Penal code, 1860 (hereinafter to be referred as i. P. C.) by giving benefit of doubt.

(2.) I have heard learned counsel for the parties and perused the entire material available on record.

(3.) IN brief, the prosecution case is that P. W. 5 swami Raghwacharya lodged a report at p. S. Kotwali Haridwar with the averments stating therein that there was a dispute pending between him and swarnirangacharya about the property of ashram and due to this enmity, respondents mrityunjay pandey and Rami Vilas came in the Ashram on 29. 7. 1985 at 4:30 A. M. and as soon as the complainant came out of the toilet at about 4:45 A. M. respondents-accused Fired upon him. The fire of Ram Vilas dwivedi hit on his chest and face while the bullet fired by respondent-accused mrityunjay Pandey hit on the coal drum. This incident was witnessed by Swami badrinath Tripathi (P. W. 4), Mukta Nath pandey (P. W. 6) and Jia Lal. With the same averments, the FIR Ex. Ka-6 was lodged by p. W. 5 Swami Raghvacharya on 29. 7. 1985 at 5:50 A. M. at P. S. Haridwar. On the basis of the FIR (Ex. Ka-6), Constable Clerk Harshyam singh (P. W. I) prepared the Chik FIR, i. e. Ex. Ka-1. The entry was also made by him in the G. D. , the copy of which is Ex. Ka. 2. The investigation of this case was entrusted to s. I. R. K. Sharma (P. W. 7), who during the course of investigation, taken the undershirt of the injured into possession and prepared a Fard, i. e. Ex. Ka-3. Injured Swami raghvacharya was medically been examined by P. W. 2 Dr. Hari Krishna Fuloria on 29. 7. 1985 at 6:30 A. M. and the medical report prepared is Ex. Ka-4. The I. O. also took in his possession a bullet from the place of occurrence and prepared a Fard, i. e. Ex. Ka-5. The I. O. also prepared the site plan of the place of occurrence, i. e. Ex. Ka-7. During investigation, the I. O. recorded the statements of witnesses and on completion of investigation, filed the charge sheet, i. e. Ex. Ka-8.