AWADHESH Vs. STATE OF U.P.

JUDGEMENT

(1.) 1. Heard Mr. Nagendra Mohan, learned counsel for appellant as well as Mr. Pankaj Kumar Tiwari, learned Additional Government Advocate on behalf of State and perused the record including lower Court records.

(2.) This Criminal Appeal has been filed under Section 374 (2) Code of Criminal Procedure against the judgment and order dated 09.01.1985 passed by the Ist Additional Sessions Judge, Sitapur in Sessions Trial No. 117 of 1982 arising out of case Crime No. 152 of 1981, under Sections 147, 148, 149, 302, 201 Indian Penal Code, Police Station Laharpur, District Sitapur, whereby the accused-appellants, Avadhesh Kumar, Patrakhan, Sheo Poojan, Uma Shanker alias Dalla and Kalloo have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149 Indian Penal Code. They have been further convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 Indian Penal Code. The accused-appellants, Avadhesh Kumar, Patrakhan, Sheo Poojan have been convicted and sentenced to undergo rigorous imprisonment for two years under Section 148 Indian Penal Code. The accused-appellants, Avadhesh Kumar and Sheo Poojan have been further convicted and sentenced to undergo rigorous imprisonment for two years under Section 201 Indian Penal Code. All the sentenced are directed to run concurrently. Accused, Purushottam and Pankaj Kumar have been acquitted giving them benefit of doubt.

(3.) The prosecution case, in brief, is that Mahadeo who was grandfather of the informant, Jagdish (PW-1) had two sons, namely Ram Dayal and Ram Asrey. Ram Dayal had one son, namely, Sri Sarjoo Prasad whereas Ram Asrey had three sons, namely, Roop Narain, Jagdish and Chhail Behari. Sarjoo Prasad was murdered and Roop Narain had lodged the report in that connection in which Gokaran and Ram Mitra were also named as accused along with others. The said case ended in acquittal. Muneshwar was the grandfather of Gokaran. Muneshwar had two sons Misri Lal and Mewa Lal. Gokaran and Patrakhan were the sons of Mishri Lal and he had also one daughter Maya. Maya was married to Chukki alias Pankaj who is an accused in this case. Shyam Murari and Avadhesh were the sons of Gokaran who had also one daughter Rajpati. Rajpati is the wife of accused Sheo Poojan. Avadhesh is also accused. The daughter of Mewa Lal, namely, Bishuna was married to Ram Mitra who was also an accused in the murder of Sarjoo Prasad. Kalloo, Mahesh Prasad and Uma Shanker alias Dalla are also accused in the present case. All the accused persons were on friendly terms with each other. It is alleged that the whereabouts of Gokaran were unknown and a report about his disappearance was lodged by Mishri Lal and in that report Jagdish (PW-1) and Chhail Behari were named as accused. No prosecution was launched on the basis of the said report, therefore, the accused persons were displeased. The wife of Gokaran used to say that she would not take off her bangles for 12 years. The accused Avadhesh and Patrakhan (sons of Gokaran) used to say that they would wreck vengeance. It is alleged that on 15.7.1981 at about 6PM the informant PW-1 (Jagdish) had gone to shahpur market. Deceased, Roop Narain (brother of Jagdish), had also gone to the said market for purchasing goods and selling food-grains. Roop Narain had sold some of his food-grains while he was yet to dispose of his remaining food-grains, Purushottam alias Khattoo fired at him, at that time the deceased Roop Narain was seated and he was hit by the shot. Thereafter Patrakhan fired from half-gun as a result of which Roop Narain fell down. Thereafter the accused persons, Kalloo, Sheo Poojan, Dalla, Avadhesh and Pankaj assaulted the deceased Roop Narain. Kalloo and Dalla were armed with lathi, Sheo Poojan and Avadhesh were armed with Banka while Pankaj was armed with a Chhuri. Patrakhan took out the spent cartridge and kept the same in his pocket and thereafter he fired second shot. The accused Patrakhan also said that he was avenging the murder of his brother and if anyone would advance then he would also be killed. The accused persons lifted Roop Narain and after covering a distance of ten steps the accused Sheo Poojan and Avadhesh severed his head and went away towards the west.