STATE OF U. P. Vs. LAKSHMI BANIYA

JUDGEMENT

(1.) Heard Sri Ratan Singh, learned AGA appearing for the appellantState of UP and Sri Prakash Chandra Srivastava, learned counsel for the accused respondent-Lakshmi Baniya and Sri Vinay Kumar Singh, learned counsel for the accused respondent-Chandrabhan Kurmi and perused the record.

(2.) Present government appeal has been preferred against the judgement and order dtd. 31/10/2003 passed by the Additional Sessions Judge, Court No. 3 in Session Trial No. 338 of 2002 (State vs. Lakshmi Baniya) and and in Session Trial No. 420 of 2002 (State vs. Chandrabhan Kurmi) arising out of Case Crime No. 33/89, under Sec. 302 IPC, P.S. Khajni, District Gorakhpur whereby both the accused have been acquitted from the charges under Sec. 302 IPC.

(3.) Prosecution story, as per FIR, in brief is that the informant Bhajuram s/o Purnavashi Baniya, resident of village Bhiuri, ThanaKhajani, District Gorakhpur had purchased a piece of land on the paved road from Bansgaon to Khajani alongwith his brother Baijnath from Kanhaiya Tripathi, who is residing in village Unwal. On the said piece of land the informant constructed a house. Laxhmi and others, relatives of said Kanhaiya Tripathi were also constructed a house over some part of the said land and residing in the said house. Regarding some part of land a civil suit was also pending before the court below. On 5/5/1989 at around 11:00 pm when his brother Baijnath, niece Kotwal and his daughter-in-law Smt. Fekna Devi laying in front of his house talking and he slept far to the West and was in awake condition then suddenly he heard his brother's noise 'Bachao Bachao'. After lighting a torch, he ran towards his brother. One Hari Koiri also reached to the spot where the lantern was burning. They saw that Baijnath was caught hold by Lakhmi Baniya and two others and Chandrabhan who armed with knife stabbed his brother Baijnath and ran towards West. They witnessed and recognized the accused in the light of the lantern. The informant and others admitted to his brother- Baijnath in the Sadar Hospital due to excessive bleeding where he is being treated. He left his brother in the care of family members and guests and came to inform about the incident. On the said written Tehrir, a first information was registered in the Police Station Khajani on 6/5/1989 at 9:15 am against the accused Lakhmi Baniya, Chandrabhan Kurmi and two others and a case crime no.33 of 1989, under Sec. 307 IPC was registered.