STATE OF U. P. Vs. UMA SHANKER

JUDGEMENT

(1.) The instant criminal appeal has been filed against the judgment and order dated 23.10.1981, passed by Ist Additional Sessions Judge, Hardoi in Sessions Trial No.136 of 1981 (State vs. Umashankar and others) arising out of Case Crime No.188 of 1980, P.S.-Qasimpur, District-Hardoi, whereby the respondents-accused (hereinafter referred to as respondents) Uma Shankar, Pyare Lal (since deceased) and Ashok have been acquitted by the trial Court from the charges of offence under Section 302 read with 34 I.P.C.

(2.) During pendency of appeal, the respondent no.2-Pyare Lal had died and the present appeal filed against him has been abated by this Court vide order dated 11.09.2017.

(3.) The prosecution case, in brief, is that the deceased Chhotey Lal (hereinafter referred to as deceased), father of P.W.2-Laxmi Kant, the respondents-Pyare Lal (since deceased), Uma Shankar and Ashok were resident of village Rasoolpur Brehman, P.S.-Qasimpur, District-Hardoi. The respondent-Pyare Lal (since deceased) was father of respondent-Ashok whereas respondent-Uma Shankar is friend of respondent-Pyare Lal (since deceased). Shiv Kant, another son of deceased, used to sit with the respondents which was not liked by the deceased as the respondents did not had good character. On 04.11.1980 at 4:00 a.m., the deceased along with his son Laxmi Kant (P.W.-2) was going to plough his field and as they reached near the grove of Chhannu (not examined), the respondents appeared there. Respondent-Ashok was armed with country made pistol whereas respondents-Pyare Lal (since deceased) and Uma Shankar were armed with lathis. The respondent-Pyare Lal (since deceased) instigated the respondents-Uma Shankar and Ashok to kill the deceased whereupon Laxmi Kant (P.W.-2) tried to save his father but he was caught by the respondent-Uma Shankar. On hue and cry made by Laxmi Kant (P.W.-2), Ratan Shankar (not examined) and Chhannu Lal (not examined) appeared at the place of occurrence carrying torches. Meanwhile, the respondent-Ashok fired at the deceased with pistol carried by him, which hit the chest of the deceased, whereupon he fell down. Laxmi Kant (P.W.-2) and other villagers took the deceased by bullock cart at Police Station-Qasimpur, District-Hardoi, where at 7:20 a.m., a written report, (Ext. Ka-1), prepared on dictation of deceased by one Raj Narain (P.W.-1), was filed and first information report (F.I.R.) was registered against the respondents-Pyare Lal (since deceased), Uma Shankar and Ashok and the same was registered as Case Crime No.188 of 1980, under Sections-307/34 I.P.C.. The deceased was sent to Primary Health Center, Behandar, District-Hardoi for recording his dying declaration and his dying declaration was recorded at 8:00 a.m. on 04.11.1980 by Dr. R. K. Singh Chauhan (P.W.-8). The deceased was referred to District Hospital, Hardoi, as his condition was critical, for treatment. Dr. S. N. Singh (P.W.-5), examined the injuries of the deceased at 12:45 p.m. on 04.11.1980 and noted the following injuries on his body :