DILIP Vs. STATE

JUDGEMENT

(1.) We have heard learned counsel for the appellants and the learned A.G.A. for the State.

(2.) The prosecution case, which was mentioned in the F.I.R. lodged by the informant Ashok Kumar P.W. 1 on 13.7.2003 at 9.15 p.m. at P.S. Bajariya, Kanpur Nagar, was that on the same day at 3 p.m., there was a quarrel between the deceased Sushil Kumar, brother of the informant after he intervened in a quarrel between one of the appellants Dilip and two other persons Rohit and Rajan. Consequent to this dispute, on the same night at 8 p.m., Sushil, P.W. 5 Jitoo, Vijay Kumar Yadav and P.W. 3 Ram Lakhan Yadav had gathered out side House No. 104/62 Seesamau, for going to a Grih Pravesh ceremony in that house, at that time, the three appellants Dilip, Arjun Pal alias Palauli, Akhtar Karim alias Achchhe Kariya and one Ankur, (who had been acquitted) came there armed with country made pistols and abused the deceased saying that he was acting as a big neta. They all fired causing injuries to Sushil, who fell at the spot. Other persons who were sitting on cots in the lane, ran away on the firing. The accused persons then left threatening any one in the neighbourhood not to depose in the case. When the deceased was being carried to Hallet Hospital, he died on the way.

(3.) It was submitted by the learned counsel for the appellants that in the F.I.R., the informant P.W. 1 Ashok Kumar does not describe himself as an eye witness and therefore, his testimony in the Court, where he described himself as an eye witness should be excluded. P.W. 3 Ram Lakhan Yadav and P.W. 5 Jitoo are the only two other witnesses, who have been produced. P.W. 3 has failed to support the prosecution case in Court and has been declared hostile. P.W. 5 Jitoo supported the prosecution case in his examination-in-chief., but in his cross examination, he has turned hostile. The appellant Dilip has been in jail for about 8 years as he was not granted bail during trial.