RAM LOCHAN Vs. STATE OF U P

JUDGEMENT

(1.) Ram Lochan and Bhola, two brothers, have filed this appeal against the judgment and order of the Vth Additional District and Sessions Judge, Varanasi, dated 4/12/1978 in S.T. No. 174 of 1978 convicting the former under Section 302, I.P.C. and the latter under Section 302/34, I.P.C. and sentencing each of them to imprisonment for life thereunder.

(2.) The prosecution story in brief is that Prabhu Narain Chaubey (deceased) was the father of Jugul Kishore, a High School Student (P.W. 1 - the informant). They were living along with other family members in the house of one Nageshwar Prasad in village Mawaiya. There was some adjoining field of Nageshwar Prasad which was cultivated by Prabhu Narain Chaubey. The two accused were living in village Nawapura which was across the road, and bore ill-will against the informant and his father because they had an eye over the said land. The further case of the prosecution is that nearly a year .ago Ram Lochan accused wanted the cycle from Jugul Kishore and on his refusal Ram Lochan had slapped him. On a complaint by Jugal Kishore there ensued an altercation and scuffle between Ram Lochan and Prabhu Narain. The prosecutions further case is that a day before the occurrence Ram Lochan was getting grazed by his She-buffalo the Makai crop sown by Prabhu Narain and on the cattle being driven away, Ram Lochan had threatened that he would be taught a lesson.

(3.) The prosecution case regarding the incident is that in the night between 213-8-1977 Jugul Kishore and Prabhu Narain Chaubey were sleeping on the roof on separate cots. A lantern was burning on the table of Jugul Kishores cot He had slept while studying leaving the lantern burning. At about 1 A.M. they were awakened because of some sound when they noticed the two accused, on the roof - Ram Lochan having a country-made pistol and Bhola having a lathi. At this point Prabhu Narain challenged them after getting up from his cot Bhola exhorted his brother to kill him. Ram Lochan thereupon fired at Prabhu Narain Chaubey who got injured. Prabhu Narain made an attempt to catch hold of the accused whereupon Ram Lochan fired again. Alarm was raised by both of them. The two accused then jumped nom the south-west corner and escaped. Ram Prasad of village Mawaiya, who was examined as P.W. 2 saw the accused running away in the light of his torch. Ram Prasad (P.W. 2) is a trolly-driver on whose trolly Jugul Kishore carried his father Prabhu Narain Chaubey to S.S.P.G. Hospital, Varanasi, and since the house of his brother-in-law Daya Shankar Pandey fell on the way to the hospital he picked him up for help. Prabhu Narain Chaubey was admitted in the hospital at 1.45 A.M. as is clear from the Statement of Dr. Om Prakash (P.W. 5) who was the then Medical Officer-in-charge of the said hospital and had examined the injuries of Prabhu Narain Cnaubey on 3/8/1977 at 1.45 A.M. and had found the following injuries Multiple gunshot wound of entry each about 1/4 cm x 1/4 cm x depth not probed on both sides of chest upper part of both side abdomen right shoulder and upper part of right arm with no wound of exit, with no blackening and no tattooing. Bleeding was present from the wound. The injury was kept under observation caused by fire-arm, duration fresh. Patient admitted. Police informed. Jugul Kishore then wrote a First Information Report (Ex. Ka-l) and lodged it at P.S. Jaitpura at 3-30 A.M. on 3/8/1977. A case was registered under Section 307, I.P.C. vide G.D. Entry Copy of which has been filed as Ex. Ka-5. Prabhu Narain Chaubey expired in the hospital on 10/8/1977 at 4 A.M. Where after the case was converted to one under section 302, I.P.C. The post mortem examination on the body of Prabu Narain Chaubey was conducted by Dr. S.K. Srivastava (P.W. 8) who found the following ante-mortem injuries