RAM DHEERAJ Vs. STATE OF U P

JUDGEMENT

(1.) THESE two connected criminals appeals have been filed by Ram Dheeraj against judgment and order dated 25-9-1985 of Sri Kazi Khurshed Ahmad, Special/additional Sessions Judge, Gonda passed in Sessions Trial No. 431 of 1984 convicting and sentencing the appellant under Section 302 IPC to imprisonment for life. Since both the appeals arise out of same judgment they have been connected and are being disposed of by a common judgment.

(2.) THE prosecution case which emer ges from the F. I. R. is that appellant Ram Dheeraj was elder brother of deceased Radhey Shyam. THEre developed illicit relationship with the appellant and the wife of his younger brother with the result that every now and then there were quar rels between the two brothers. THE brothers had separated inasmuch as the appellant used to live with his father while the deceased lived with his mother. On the night intervening 19/20th October 1984, the appellant, his father and the mother of the appellant were sleeping in the Osara. Deceased Radhey Shyam was sleeping at the boring well at the out skirts of the village. THE mother of the appellant woke up in the night and she found that the appellant was not on his cot, but came after some time and went to sleep. At about 4 a. m. informant Dashratha Dei got up to give fodder the cattle. When the deceased did not turn up, she went to the boring and found the deceased lying murdered. On seeing this, she started weeping and wail ing which attracted the villagers. It is fur ther mentioned in the F. I. R. that earlier also the appellant had extended threats to the life of the deceased and hence the informant believed that the murder was committed by the appellant. This F. I. R. was lodged on 7th October 1984 at P. S. Utraula, which is about 11/2 miles from the spot. On the lodging of the F. I. R. usual investigation ensued. THE body of Radhey Shyam was sent for post-mortem examination which was conducted by P. W. 7 Dr. M. N. Singh who found the following anti-mortem injuries on the person of the deceased: (1) Lacerated wound 1. 5 cm x 0. 2 cm x skin deep horizontal 1. 5 cm below (L) angle of mouth (wound is superficial ). (2) Lacerated wound 0. 3 cm x 0. 1 cm x skin deep (superficial) 0. 5 cm ahove injury No. (1) (3) Lacerated wound 1. 3 cm x 0. 2 cm x skin deep superficial) oblique on chins. (4) Lacerated wound 0. 5 cm x 0. 3 cm x skin deep (superficial) on chin 0. 3 cm away (L) side injury No. (3 ). (5) Contusion on upper part of neck horizontal 13 cm x 3 cm on and above thyriod cartilage underlying skin parchment like sub cutaneous tissue. Muscles contused. (6) Contusion 7 cm x 6 cm on lower side of face on (L) on side (Paper torn ). (7) Abrasion 0. 3 cm x 0. 2 cm x tip of (R) thumb. (8) Multiple abrasions on whole of back size varying from 7 cm x 1. 5 cm to 2 cm x 1 cm.

(3.) IN support of its case, the prosecu tion examined as many as 13 witnesses. PW. 1 Smt. Dashratha Dei is the informant of the case, PW. 2 Jalil Ahmad and PW. 3 Maqbool Ahmad are witnesses of the recovery of the weapon of assault and recovery of clothes of the accused, which were alleged to be worn by him at the time of commission of the crime. PW. 4 Mohammad Naki is witness of inquest. PW. 5 Sohrab Ansari is witness of last seen and witness of motive, but he did not sup port the prosecution case and was declared hostile. PW. 9 Mazar Ahmad is also wit ness of last seen, but he also did not sup port the prosecution case and was declared hostile. PW. 6 Rajendra Prasad is witness of formal nature and he had taken the dead body for the purpose of post-mortem ex amination. PW. 7 Dr. M. N. Singh con ducted the post-mortem examination on dead body of Radhey Shyam. PW. 8 Lalji Yadav was the constable clerk who had taken down the F. I. R. at the police station. PW. 10 Abdul Hakim Qureshi is also a formal witness. PW. 11 S. I. Anjani Kumar Upadhyay was the station officer who had conducted the investigation of the case. Evidence of PW. 12 Janeshwar Yadav is of purely formal nature. Lastly, PW. 13 Dr. . U. Khan had examined the appellant. At the close of the evidence, the appellant again pleaded not guilty and he examined two witnesses in his defence. They are D. W. 1 Ram Prasad who was a peon in the office of the District Magistrate and D. W. 2 Jamadar Singh, stenographer of the office of the District Magistrate. Accepting the prosecution case, the learned trial Judge convicted and sentenced the appellant as mentioned above. The appellant has now come up in appeal to this court.