DHARAMBIR Vs. STATE OF U P

JUDGEMENT

(1.) Y. R. Tripathi, J. This appeal has been preferred against the judgment and order dated 9-7-1981 passed by Sri B. D. Agarwal, the then Sessions Judge, Kanpur, whereby he having convicted the appellant under Section 302 IPC has sentenced him to imprisonment for life.

(2.) THE facts necessary for appraisal of discussion made hereinafter are that 8/9 days prior to the date of incident which took place on 6-2-1981, there had been some clash between the habitats of village Sen Pashchimpara on the one hand and the police personnel on the other. In which a policeman had been shot at. Srikant and Laxmi Kant both real brothers and one Dharmraj, brother of the appellant with others had been arrayed as accused in that incident and Anant Singh, brother of the informant alongwith others had been named as a witnesses. Some of the witnesses of that case had filed their affidavits disowning the prosecution case and pressure was built on Anant Singh also to file his affidavit as had been done by other witnesses. It is said that Anant Singh did not succumb to the pressure brought on him, which caused annoyance to the accused of that case, who nursed grudge against Anant Singh and his family members. With these antecedents in the back ground, it is alleged that on 6-2- 1981 at about 10. 30 a. m. when Shishupal Singh (deceased) and his brother Shiv Pal Singh PW-1 both brothers of Anant Singh, were on way on bicycles to Kanpur from their village Sen Pashchimpara P. S. Bidhuna to sell milk and had reached about a furlong ahead of Mardanpur culvert, the appellant, Sri Kant, Laxmi Kant and Virendra Kumar, out of whom the appellant was armed with a country made pistol and the rest with hockey sticks intercepted them and on the exhortation of Sri Kant, Laxmi Kant and Virendra Kumar to kill Shishu Pal Singh, who was a little ahead of his brother Shiv Pal Singh at that time, the appellant fired at Shishu Pal who on being hit by the shot fell down from his bicycle and died instantaneously, Shishu Pal Singh at that time was carrying milk on his bicycle in two containers which got split. It is also said that the three companions of the appellant, Sri Kant Laxmi Kant and Virendra Kumar gave a chase to Shiv Pal Singh with a view to assault him, but Shiv Pal Singh ran away and managed to escape unhurt. Mangal Singh PW-2, Raj Pal Singh PW-3 and some other persons including Prahlad Singh and Nawal Kishore (not produced) who were coming from Kanpur and were present nearby were attracted to the scene of the incident whereupon the appellant and his companions took to their heels. After the incident, Shiv Pal Singh prepared a written report Ex Ka 1 and went to the Police Station Sachendi which lies at a distance of six miles to the west of the place of incident and made over the written report there, on the basis of which constable Lallan Singh then posted there drew a chick report Ext Ka 14 at 12. 20 p. m. on that very day and registered a case vide G. D. Ext. Ka 15. Investigation of the case was entrusted to S. I. Subedar Singh, who at that time was posted at Patarsa out post established in Panki Industrial Area situate at a distance of one mile from the place of occurrence. After registration of the case at Police Station Sachendi, the relevant papers were sent through constable Abdul Haleem PW-6 to SI Subedar Singh PW-5 who held an inquest of the dead-body and completed other formalities and after sealing the dead-body handed it over to abdul Haleem PW-6 and a home guard Raj Kumar (not produced) for being taken to mortuary. Constable Abdul Haleem and Raj Kumar in their turn took the dead-body to mortuary and produced it before Dr. R. C. Tripathi PW-4 then posted as Medical Officer in ESI, Babupurwa who conducted autopsy on the dead-body and found the following ante-mortem injuries on the person of the deceased : (1) Wound of gun shot entrance 8 in numbers in an area of 9 cm x 9 cm placed over Rt side lower part of chest (Rt. Hypracamdum region) 16 cm below right side axilla. Each entrance is in size of 1 cm x 1 cm with presence of blackening 1/2 cm around each, wound margins enverted. (2) Wound of gun shot exit 1. 5 cm x 1 cm present over back of upper part of abdomen 16 cm above to median part of buttock.

(3.) THE prosecution to prove its case examined Shiv Pal PW-1 the informant Mangal Singh PW-2, Raj Pal Singh PW-3 are witnesses of fact Dr. R. C. Tripathi PW-4, the then Medical Officer ESI Babupurwa, who conducted the post-mortem examination of the deceased SI Subedar Singh PW-5 the Investigating Officer, who started and conducted part of the investigation of the case. Constable Abdul Haleem PW-6 who alongwith Raj Kumar took the dead-body of the deceased to the mortuary for its post-mortem examination. Babu Lal Tiwari PW-7 who on the date of incident was posted as Head Constable at P. S. Sachendi and in whose presence the FIR of the incident was lodged and the case was registered.