KAMLESH DUBEY Vs. STATE OF U.P.

JUDGEMENT

(1.) IN this cluster of appeals, half a dozen appellants namely Kamlesh Dubey (A-1), Arun Kumar Dubey (A-2) Guddu Yadav @ Bhartendu Yadav (A-3), Rakesh Bharti (A-4), Neeraj Misra (A-5) and Pravesh @ Bablu (A-6) have challenged legality and sustainability of their conviction U/S 148,307/149 and 302/149 I.P.C. and imposed sentence of 2 years R.I. for the first count, 10 years R.I. with fine of Rs. 10000/= and in default of payment of fine to undergo 6 months further R.I. on the second count and imprisonment for life and a fine of Rs. 10000/= and in default of payment of fine to serve 6 months additional R.I. On the last count, through impugned judgment and order dated 18.4.2007, passed by Additional Sessions Judge, Court No.1, district Sonbhadra, in two connected Sessions Trial Nos. 120 of 2000, State versus Neeraj Misra and others and S.T. No. 121 of 2000, State versus Nirbhaya Shankar Tiwari and others, (both the trials relating to crime number 43 of 98, P.S.Ghorawal, District Sonbhadra). By the same judgment learned trial judge has acquitted other six accused namely Nirbhaya Shankar Tiwari, Ayodhya Prasad Pathak, Rajnish @ Turra, Pramod Pandey, Trinayan Dubey, and Rakesh Kumar Misra against which informant Nagesh Kumar Misra has preferred Criminal Revision No. 1387 of 2007, Nagesh Kumar Misra versus State of U.P. and others, which revision is also being disposed off by this judgment.

(2.) COMPLETE narration of prosecution story was elaborately divulged by Nagesh Kumar Misra, (injured/ informant/PW1), in the trial, and from a perusal of his testimonies it emerges that the parties involved in the incident were closely related and were first cousins. From the stated pedigree it is discernible that Ram Nath Misra, Sankatha Prasad Misra, and Shitala Prasad Misra, all r/o village Kamharia, P.S.Ghorawal, district Sonbhadra, were uterine sibling brothers. Sankatha Prasad Misra had only a daughter and hence he partitioned his estate into two parts-one was given to his daughter, whereas rest was bequeathed to Shitala Prasad Misra, accumulating his estate to 134 bighas. Shitala Prasad Misra, aforesaid, had four sons Krishna Nand Misra, Deva Nand Misra, Atma Nand Misra, and Badri Narayan Misra (injured/ father of the informant).Since the eldest son Krishna Nand Misra had separated very early, therefore noting his successors is not very relevant for us. Deva Nand Misra had three sons Jagdish Misra, Surendra Misra and Santosh Misra, whereas Atma Nand Misra had two sons Neeraj Misra (A-5) and Pankaj Misra, from his wife Pratima Devi. Badri Narayan Misra (injured) has two sons informant/injured Nagesh Kumar Misra, PW1,and Devesh Kumar Misra (deceased). Tribhuvan is the son of Sadhu (husband of sister-in-laws) of Atma Nand Misra. It seems that by passage of time and rapacity to accumulate more wealth infused hostile feelings amongst the family members and corroded family cohesiveness as a result of which small bickering amongst them started, which are registered here under.

(3.) DECEASED had expired in Heritage hospital Varanasi on 14.6.1998 at 9.20 a.m. and therefore, after receiving information regarding his death offence u/s302I.P.C. was added, vide CD No.8 dated 15.6.1998 at 6.35 a.m. On 28.9.1998, I.O. noted sending of recovered articles for forensic science examination. On 10.11.1998 accused Nirbhaya Shanker Tiwari was interrogated and on 16.12.1998 Gulab Chandra Yadav and Rajesh Yadav were interrogated and their statements were recorded. On 10.2.1999 statement of accused Rakesh Mishra was recorded. Thereafter further investigation was conducted by IIIrd I.O. S.I. Raja Ram Dwivedi P.W.9, who penned down statements of accused Trinayan Dubey (A- 3) and thereafter charge-sheeted rest of the accused vide Exhibit Ka-17. Injured Devesh Kumar Mishra and Badri Narayan Mishra were medically examined on 11.6.1998 in District Hospital, Sonbhadra by Dr. J.K. Maurya, P.W.5 at 7.35 and 7.45 a.m. respectively vide their medical examination reports Exhibit Ka-7, Exhibit Ka-9. Reference slips referring them to Heritage Hospital Varanasi are Exhibit Ka-8 and Ka-10. According to this Doctor, injured Devesh Kumar was 32 years of age and was brought to him by Bhupendra Nath Mishra son of Jwala Prasad Mishra, after he was already given first aid at P.H.C., Ghorawal. Following injuries were noted by the doctor in his medical examination report Exhibit Ka-7:- 'Gunshot injury right side of head 7 cm above right ear of size, 1 cm x 1 cm" Devesh Kumar Misra was unconscious and was gasping. His heart beat was 110 per minute and aforementioned injury was sustained by him by gun or country-made pistol on 11.6.1998 at 6 AM. He was referred to Heritage Hospital Varanasi, vide Ext. Ka-8. Badri Narayan Mishra injured was found to be 48 years of age and following injury was detected on his person by the doctor:- ' an entrance wound of gunshot right arm 5 cm below the right shoulder joint.'