HAR PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) M. C. Jain, J. All these three appeals arise from the judgment and order dated 11-8-1979 passed by the Sri R. C. Verma, the III Addl. Sessions Judge, Aligarh in S. T. No. 63 of 1978 connected with S. T. No. 64 of 1978 and S. T. No. 65 of 1979. By the said judgment, the trial Court convicted the accused-appellants Har Prasad and Niranjan of Criminal Appeal No. 2397 of 1979 under Section 302 read with Section 34 I. P. C. and sentenced each of them to undergo life imprisonment. Government Appeal No. 3084 of 1979 has been filed by the State against Dalveer alias M. L. A. who faced trial before the trial Court, but was acquitted. Another Government Appeal No. 3086 of 1979 has also been filed by the State of U. P. against the accused Ram Prakash, who too, was acquitted by the learned trial Court. Thus, one appeal has been filed by two convicted persons whereas other two connected appeals have been preferred by the State against the acquittal of the other two. The appellant Har Prasad of Criminal Appeal No. 2397 of 1979 died in 1983 as per the report of the C. J. M. concerned dated 13-3-2002 and as such, the appeal abates of so far as he is concerned.

(2.) THE relevant facts, as per the F. I. R. and evidence, may be stated briefly. THE accused Har Prasad, Ram Prakash and Niranjan were named in the F. I. R. whereas Dalveer alias M. L. A. came to light during investigation and was put up for identification. THEre was enmity between Har Prasad, Ram Prakash and Niranjan on one side and the deceased Raghubir Singh on the other. THE incident took place in between the night of 8/9-8- 1977 at about 12. 00 O'clock in village Haibatpur Phagoi, P. S. Lodha, District Aligarh. THE report was lodged on 9-8-1978 at 7. 30 a. m. at Police Station Lodha, District Aligarh. THE distance from the place of incident to the Police Station was 6-1/2 miles. THE informant, P. W. 1 Roop Ram Singh is the uncle of the deceased. Har Prasad had borrowed Rs. 2,500/- from the complainant Roop Ram Singh and had executed a pronote in lieu thereof. Three days before the incident, Raghubir Singh deceased, who was the nephew of the deceased, stiffly reminded Har Prasad for the payment of the loan. Har Prasad refused to repay. Raghubir Singh retorted that he would take legal steps to recover the money and he would have to bear the insult. Har Prasad then told the deceased that he would not leave him alive to realize any loan.

(3.) ON the lodging of the F. I. R. a case was registered and investigation followed as usual. The post- mortem over the dead body of the deceased was conducted by P. W. 18 Dr. S. K. Saxena on 10-8-1977 at 2. 30 p. m. The deceased was aged about 35 years and 1-1/2 day had passed since he died. The following ante mortem injuries were found: (1) Gunshot wound of entry, 2/10" x 2/10" on the left cheek in front of left ear. The margins were black one mm all around the wound. The wound was directed upwards and to the right. A hole was present on both sides of upper jaw. (2) Gunshot wound of exit 4/10" x 4/10" on the right side of neck. 1/4" below the right ear. It was exit wound of injury No. 1. (3) Gunshot wound of entry on the right side of neck in outer and middle part, 2/10" x 2/10" and was directed downwards and outwards towards left side. (4) Gunshot wound of exit, 4/10" x 4/10" on the left inter scapula region on upper part. It was exit wounds of no. injury 3. Oesophagus was found lacerated through and through under this injury. The shot had travelled in the subcutaneous tissues and it did not enter the left lung or left pleural cavity. (5) 40 gunshot wounds of entry, on the right parietal region of scalp, in an area of 6" x 6". Each wound was 1/10" x 1/10". Its depth could not be probed. (6) Incised wound of 1" x 1/10" x skin deep, on the middle of right cheek. (7) Abrasion 1/2" x 1" on right side of the face 1/2" below the right eye. (8) Gunshot wound of entry, 2/4" x 1-1/2" on right arm, on outer and middle part. The skin was black and scorched for half an inch all around the wound. The wound was directed inwards. The cause of death was coma and shock resulting from fire-arm injuries.