SACHCHEY LAL TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated 19 -3 -1999 passed by Sri Indra Bahadur Singh, learned II Addl. Session Judge, Varanasi thereby convicting the appellant Sachchey Lal Tewari, for the offence punishable under Section 302,1.P.C. and awarding him death penalty. The appellant Bachchey Lal Tewari has also been convicted for the offence punishable under Section 302 read with Section 34, I.P.C. and has been sen ­tenced to undergo imprisonment for life.

(2.) FACTS giving rise to the prosecution of the two appellants are that the com ­plainant Achhaiber Mishra (PW - 1) and both the appellants are residents of village Lerhupur within the circle of police sta ­tion Sarnath district Varanasi in Uttar Pradesh. The agricultural fields of the two sides also adjoin each other, the old brick kiln towards east and south of the village. The ground level of the field of com ­plainant Achhaiber Misra is slightly higher than the level of the plots of the appellants. On 3 -11 -1995 at about 6.45 a.m., the ap ­pellants Sachchey Lal Tewari and Bachchey Lal Tewari sons of Mahajan Tewari and Pintoo grand -son of Mahajan Tewari were dismantling the demarcating line (Mend) between the fields of the com ­plainant Achhaiber Misra and the appel ­lants. The complainant Achhaiber Mishra witnessed it and he along with his sons Vijai Shanker Misra and Swrender Nath Misra reached near the field and asked the appellants not to dismantle the demarcat ­ing line of the field. There was exchange of hot words between the two sides. Pintoo grand -son of Mahajan Tewari took out the pistol and handed it over to the appellant Sachchey Lal Tewari and then Pintoo and Bachchey Lal Tewari exhorted by saying that the complainant side should be killed. On it Sachchey Lal Tewari, appellant, fired with the pistol at Vijai Shanker Mishra and Surender Nath Mishra, as a result of which Surender Nath Mishra and Vijai Shanker Mishra sustained fire arm injuries and died instantaneously on the spot. The occur ­rence was witnessed by the Prem Nath Mishra, Rama Kant Mishra and other vil ­lage persons and thereafter the two appel ­lants and Pintoo ran away from the scene of occurrence. Leaving behind the dead bodies of his sons Vijai Shanker Mishra and Surender Nath Mishra, the com ­plainant Achhaiber Mishra went to the police station Sarnath in district Varanasi and lodged a written report Ex. Ka -1 there at about 8.15 a.m. on it G.D. entry was made at the police station and a case against the appellants was registered. The investigating Officer, S.I. Sri I Sita Ram Chaudhary reached the scene of occur ­rence. He inspected the site and prepared the site plan Ex. Ka -8 and Ka -6. Thereafter he recorded the statements of the wit ­nesses and took the simple and blood stained earth from the scene of occurrence and also prepared the Panchayatnamas of the dead bodies of Vijai Shanker Mishra and Surender Nath Mishra Ext. Ka -9. The dead body of Vijai Shanker Mishra and Surender Nath Mishra were sent to district hospital Varanasi where post mortem ex ­amination was conducted on 4 -11 -1995 vide post mortem reports Ext. Ka -17 and Ka -18, after completing necessary for ­malities of investigation, charge -sheet was submitted against the appellants who pleaded not guilty to the charges and claimed to be tried. The defence of the appellants is that they have been falsely implicated in this case due to previous enmity and ill -will.

(3.) AT this very stage it may be pointed out that one Pintoo was also charged for the offence punishable under Section 302 read with Section 34,1.P.C. However his case was separated as he was below 16 years of age at time of alleged occurrence and therefore, he has been directed to be tried under the provisions of Juvenile Justice Act.