GAINDAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The present appeal preferred by three appellants, namely, Gaindan Singh, Om Prakash and Devi arises out of the judgement of conviction dated 22-9-1982 passed by the learned Sessions Judge, Moradabad in Sessions Trial No. 70 of 1982 by which the three accused persons who were tried together, were held guilty of committing offence under section 302/34 I.P.C. After hearing the appellants on sentence on 24-9-1982 the learned judge directed each of them to suffer rigorous imprisonment for life.

(2.) One of the appellants Gaindan Singh was reported dead and that was confirmed by the report submitted by the Chief Judicial Magistrate, Moradabad as a result of which an order of abatement of appeal of Gaindan Singh was passed by this Court on 31-8-2003 as a result of which the appeal survived only on behalf of appellant no. 2 Om Prakash and appellant no. 3 Devi.

(3.) The prosecution case is contained in the written report Ext. Ka-1 filed by PW-1 Ram Singh who happened to be nephew of the deceased Ram Bhajan. It was stated by the informant that in the night intervening 24th and 25th October, 1981, the deceased, his wife Smt. Bholi (PW-2) and their son Ekandarpal as also the informant were sleeping in the verandah of the house of deceased Ram Bhajan. It was at about 2:30 a.m. in the night that the child of the deceased woke up to attend to the call of nature and he was taken by PW-2 Smt. Bholi, his mother, to an appropriate place. When the lady was in the process of escorting her child to the right place so that he could ease out, she found the appellants descending from the roof top of her house after having transgressed it from their own roof top. One of the appellants, Devi, ran to the main entrance of the house to unlatch the doors and at the same time appellant Om Prakash dealt blows with kulhari on the deceased who was sleeping in a cot. The deceased-appellant Gaindan Singh fired a shot upon the deceased.