SWAMI NATH RAI Vs. STATE OF UP

JUDGEMENT

(1.) These two connected appeals emanates from the impugned judgment and order dated 26.6.1982 passed by Ist Additional Sessions Judge, Ballia in S.T. No.196 of 1981, State Vs. Sachindra and others, relating to Police Station Garwar, district Ballia, by which, learned trial Judge while acquitting third accused Smt. Urmila Devi wife of Swami Nath Rai, has held appellant Swami Nath Rai (A-1) and Sachindra Nath Rai (A-2) guilty under section 302/34 IPC and therefore has convicted them of the aforesaid offence and has sentenced them to life imprisonment therefor.

(2.) Recapitulated briefly, prosecution allegations, as was stated in the written F.I.R., Exhibit Ka-2, by the informant Harvansh Rai P.W.1, narrated during the investigation and testified during the session's trial by the three fact witnesses Harvansh Rai P.W.1, Shyam Sunder Rai P.W.3 and Veer Bahadur P.W.4 are that, one Rameshwar Rai was the resident of village Amdaria, P.S. Garwar, district Ballia. He had three sons Shiv Nath Rai, Vishwanath Rai and Swami Nath Rai (A-1). Urmila Devi (acquitted accused) is the wife of(A-1). Informant Harivansh Rai, P.W.1 and Harishanker Rai(deceased) were real sibling brothers being sons of Shivnath Rai. Shyam Sunder Rai P.W.3 is the son of Vishwanath Rai. Thus it is evident that two of the accused, deceased, informant and witness P.W.3 were related with each other as uncle and nephew. Informant had an agricultural field one furlong away from his abode. Four or five years prior to the present incident, all the collaterals lived together with undivided properties but thereafter, a family partition took place and they were separated. Informant was employed in Gadwar block but he often used to visit his village.

(3.) On the incident date 29.10.1981 at 7 a.m. Hari Shanker Rai (deceased) went to his agricultural field at Chak No.11, of which informant P.W.1 and appellant (A-1) were joint holders where he spotted that paddy crop of (A-1) was being irrigated by (A-2) and acquitted accused Smt. Urmila Devi from the tube-well of (A-1) through an aqueduct, which ran north - south and then towards west. Deceased inhibited (A-2) not to irrigate his field from the aqueduct which, according to the informant's case, was his private drain. Informant at that time was planting potato seeds in his field. Deceased thereafter approached the informant and informed him about the irrigation done by the accused appellants and also told him that, since he (deceased) had to irrigate his agricultural field, therefore, he is going to stop paddy crop irrigation by (A-2). After the deceased proscribed (A-2) from irrigating his paddy field, (A-1) and Smt. Urmila Devi retaliated by replying that (A-2) will irrigate his filed and deceased may do whatever he could. On this, the deceased barraged the aqueduct and stopped irrigation of ( A-2) crops. On this (A-1) instigated (A-2) to bring his gun and shoot down the deceased and he will meet the expenses of the consequences which may ensued thereafter. Abiding the call (A-2) rushed back to his house at a distance of one and a half furlong to reappear at the spot after ten or fifteen minutes. Meanwhile informant continued to sow potato seeds and the injured/deceased started mudding the water drain. Ten or fifteen minutes after above verbal tirade, (A-2) armed with D.B.B.L. gun of his uncle Arunandra Nath Rai @ Tunnu Rai, appeared at the incident spot. Informant left sowing of his potato seeds ran towards his brother but when he was twenty five or twenty paces away from him (A-2) shot at the deceased causing him gunshot injuries on the left hand and left side chest as a result of which injured/deceased squatted on the ground. Informant had also spotted Shiv Muni Rai proceeding towards north from a mahua tree, which was 8 or 10 paces away from the incident spot. Firing at the injured/deceased Hari Shanker, (A-2) sprinted away towards north. Shyam Sunder Rai P.W.3, Veer Bahadur Rai P.W.4, Sangram Rai and the informant P.W.1 had witnessed the entire episode. Injured had fainted sustaining gunshot injuries, from which blood had trickled down on the ground. Injured was transported to his house and a person was sent to fetch a taxi to Ratsar. In 10 or 15 minutes, the person brought the taxi, in which injured was carried to Ratsar Hospital in an unconscious state.