PUSHKAR PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J.- These two appeals arose from a common judgment dated 1-2-1996 passed by learned IInd Additional Session Judge, Jaunpur Sri R. A. Kesarwani. Appellant Pushkar Pandey was convicted and sentenced to life imprisonment under Section 302 IPC under Section 307 IPC to ten years RI and a fine of Rs. 3,000 under Section 323/34 IPC to six months RI under Section 342/34 IPC to six months RI and under Section 27 Arms Act to three years RI and a fine of Rs. 1000. Appellant Prabhakar Pandey was convicted and sentenced under Section 302/34 IPC to life imprisonment under Section 307 IPC to 7 years RI and a fine of Rs. 3000 under Section 323/34 and 342/34 IPC to six months RI each respectively. He has been convicted under Section 30 Arms Act to six months RI Appellant Karunakar Pandey was convicted and sentenced to life imprisonment under Section 302/34 IPC under Section 323/34 IPC to six months RI and under Section 342/34 IPC six months RI. All the sentences were directed to run concurrently. They were held to pay compensation under Section 357 (3) IPC all the appellants were liable to pay a sum of Rs. 1,50,000 as compensation. Out of which Pushkar Pandey is to deposit a sum of Rs. 1,00,000 Karunakar Pandey and Prabhakar Pandey were fastened with the liability to pay a sum of Rs. 25,000 each towards the compensation amount. The amount so deposited shall be payable to Raj Narain Singh informant.

(2.) THE facts giving rise to the offence are alleged in the written report submitted at police station Mariyahun by Raj Narain Singh for an incident that had taken place at about 8. 30 a. m. on 24-5-1994. THE first information report was lodged at about 9. 10 a. m. THE distance of the police station from the petrol pump being 7 kms north. THE story in brief is that the informant is a resident of Village Pravaspur, Police Station Mariyahun, district Jaunpur. On the date of the occurrence Sunil Singh alias Guddoo, resident of Village Vasnari alias Vasvadi, Police Station Kerakat, district Jaunpur visited informant for the bidai of his sister who was married to the informant's son Rakesh. On 24-5-1994 in the evening this bidai was sought in connection with a marriage in his family. On the date of the occurrence i. e. 24-5-1994 at about 8. 30 a. m. Sunil Singh went to the petrol pump know as Dharamraj Service Station Pali for taking petrol in his scooter. In the meantime the informant along with Adya Prasad Singh of his village came on the road in front of the petrol pump on his way to go to the examination center where they were to check the answer books of the board exmainations. THEy saw that a quarrel between Prabhakar and Sunil Singh was gong on at the petrol pump. In the meantime Prabhakar Pandey, Karunakar Pandey and Pushkar Pandey started dragging Sunil Singh to their show room. He was given beating also in the process. When the informant and his companions tried to prevent them they were greeted with abuses. Prabhakar Pandey exhorted his companions to shoot the informant. On this Pushkar Pandey fired a shot at him with his DBBL gun. THE informant and his companions retreated to safety. THE gunshot report attracted his sons Rajesh Singh and Brijesh Singh, who emerged out from the Village pathway by then. As soon as they reached the petrol pump Prabhakar Pandey and Karunakar Pandey challenged them also and exhorted Pushkar Pandey to kill the two. Pushkar Pandey immediately opened fire on them. THE fire shots discharged by Pushkar Pandey struck his sons who fell down and died on the spot. THE incident was witnessed by Ramjit Singh, Virendra Singh, Bholanath Singh and others apart from the informant and Adya Prasad Singh.

(3.) IT is contended by learned Counsel for the appellant that original first information report is not the hand work of the informant. IT apparently was prepared by some one else and the informant only signed it. Different types of pens were used in its transcription. Even the hand writing also differs. IT is also contended that the injuries of the two deceased indicate that firing was resorted to from beyond 2 yards and within 3 yards. The stomach of both the deceased were empty and intestines suggest that they had evacuated. Injury of Sunil Singh requires close scrutiny. IT is not genuine. Firing was made by the servant of petrol pump. No use of any revolver, Katta or gun recovery of which was alleged, is borne out form the medical evidence. Even the country made pistol claimed to have been recovered from the drawer of the counter was not used in the offence. In the nutshell the truthfulness of the story of the prosecution has seriously been challenged. IT is further alleged that the conduct alleged against all the appellants is wholly improbable. Many houses and shops are in the vicinity of the place of the occurrence but none of them were examined despite presence of these persons being admitted. Raj Narain Singh has not suffered any injury and had not made any attempt to separate the parties. IT is most unnatural on his part if he was present there. Learned AGA in response submitted that it is a broad daylight incident. The report was promptly lodged by the father of the deceased. Presence of the father and other witnesses is not open to any challenge. They are the probable witnesses. The medical evidence corroborates the prosecution story. The presence of injured witness further lends assurance to the truthfulness of the prosecution version. In order to test the rival contentions we propose to examine first the medical evidence.