OMKAR AND ANOTHER Vs. STATE OF U.P.

JUDGEMENT

(1.) :- Criminal Appeal No. 1769 of 1981 was filed by Omkar and Asharfi whereas criminal appeal No. 1915 of 1981 was filed by Gulab. During pendency of the appeal, the appellant Asharfi has died, as per the report of C.J.M. dated 29th August, 2006, hence, appeal in respect of appellant Asharfi abates.

(2.) THE appellant Omkar was convicted under Section 307, I.P.C. whereas the appellants Gulab and Asharfi were convicted under Section 307 read with Section 34, I.P.C. and each of them was sentenced to udergo R.I. of three years vide judgment and order dated 5.8.1981 passed by the 5th Addl. Sessions Judge, Bareilly in Sessions Trial No. 234 of 1980.

(3.) THE prosecution case, as unfolded in the F.I.R. is that about 20 days before the incident, when the complainant Jhamman Lal was returning to his house from Shivpuri market, accused Asharfi, Gulab and two others namely Krishna and Lallu Dhimar threatened him with dire consequences on the ground that he was a police informer. It was alleged that on the fateful night, the complainant was sitting in his chaapal and was awake due to stomache. His sons Ram Swaroop (P.W. 6) and Ram Prasad (P.W. 2) and his cousin Kedar (P.W. 4) were sleeping on two cots nearby. At about mid night, the appellants Asharfi and Omkar armed with guns and Gulab armed with tamancha came there. On the exhortation of Asharfi, Omkar fired at the complainant with intention to kill but the complainant escaped unhurt and fire arm injuries were sustained by his sons and cousin. There was a light of lantern. The complainant raised alarm, the neighbours Manohar and Bhola (P.W. 3) came running and challenged the accused, who ran away towards south. Due to night time and fear of miscreants, the complainant went to police station in the morning and lodged F.I.R. Ext. Ka-4 scribed by Ram Swaroop at the police station.