SHARDA Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed by Sharda against the order and judgment dated 21-5-1979 of VI Addl. Sessions Judge, Allahabad in Sessions Trial No. 311 of 1978 convicting him under Sec. 302 IPC and sentencing him to imprisonment for life. The prosecution case:, as revealed in the FIR and by the prosecution evidence briefly stated is as follows : Sharda was being prosecuted in a case under Sec, 25 Arms Act, 1959 in which Rajjan deceased was a witness. That incident had taken place about 8 or 9 days prior to the occurrence. On 28-6-1978 at about 6 P. M. when Rajjan along with his brother Lallu (PW 1) and Dwarka Prasad (PW 2), whose field he was cultivating on Batai, was going to the mohalla of Pasis known as 'Pasiyana' of village Ajhwa within police station Saini district Allahabad and had reached in front of the house of Mallu the appellant armed with a gun arrived there; one unknown person who was his companion too was with him. He was armed with a pistol. Sharda called Rajjan near him and enquired from him as to whether he would depose against him in the case in which he was cited a witness. Rajjan replied that ha had no fear in stating the truth. Sharda, therefore, got enraged and said that he would not be allowed to appear as a witness in the court. Saying so, he fired at him with his gun twice. His companion also fired at him with his pistol. Rajjan received several gun shot injuries and he died on the spot. Lallu and others raised alarm. Many persons had arrived from the neighbourhood. Both the miscreants ran away towards west and made good their escape. It is also in evidence that Rajjan and others had gone to Pasiyana in search of the labourers. Lallu then went to the police station and lodged a written report at 8 P. M. Head Moharrir Sri Ram Ji Misra made an entry in the G. D. He prepared a chick report on the basis of the written report and registered a case against Sharda and his associate under Sec. 302 IPC. SI D. B. S. Malik (PW 5) atonce took up the investigation of the case. He interrogated Lallu at the police station. He then went to the site and prepared an inquest report. He sent the dead body to the mortuary along with constable Ram Shankar Rai. The Investiating Officer inspected the site and prepared the site plan, Ex. Ka. 5. He found an empty cartridge of 12 bore lying there. He took the same in his possession. He than interrogated Dwarika Prasad and other witnesses. He also took the blood stained and ordinary earth from the site. After completing the investigation he submitted the chargesheet against the appellant. It appears that a suspect was put up for test-identification but no chargesheet could be submitted against him as there was tie evidence of only one identifying witness against him.

(2.) THE post mortem examination of the dead body was conducted by Dr. Suneel Verma (PW 6) Medical Officer, Moti Lal Nehru Hospital, Allahabad on 29-6-78 at 3 PM. THE doctor found the following ante mortem external injuries on the dead body ;-(Injuries quoted-Editor).

(3.) IN support of its case the prosecution has examined Lallu (PW 1) and Dwarka (PW2) as eye witnesses of the occurrence. Both these witnesses have corroborated each other on all material particulars and have fully supported the prosecution case as stated in the FIR. The learned counsel for the appellant has criticised their evidence on the ground that they are highly interested witnesses, one being the real brother of the deceased and the other being the person, whose field the deceased was cultivating on Batal. There is no law that the persons closely connected with the deceased should not be believed. No doubt, their evidence has got to be carefully scrutinized. Learned counsel for the appellant has argued that their presence was improbable because they have admitted that It was a Bazar day and the labourers generally go to the market and, as such, were not easily available. Lallu, no doubt, stated that he could not get any labourer in Chamariyana, and then he went to Pasiyana. Even there he found that mostly women had collected after the occurrence and most of the male members were not there. But he has not stated that it was not: possible to engage any labourer for working in the field that day. He did not have time to talk to the labourers as this incident took place. Dwarka has also stated that the agricultural labourers were engaged there and not in the market. There was thus nothing improbable for Rajjan and others in going there.