AKHILESH Vs. STATE

JUDGEMENT

(1.) These two appeals question the judgment and order dtd. 7/7/1993 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Etawah in Sessions Trial No. 11 of 1992 convicting Arvind Kumar (appellant in Criminal Appeal No. 1300 of 1993), under Sec. 302 I.P.C., and Akhilesh @ Pappu (appellant in Criminal Appeal No. 1217 of 1993), under Sec. 302 read with Sec. 34 I.P.C., and sentencing them to imprisonment for life. As the two appeals arise from a common judgment and order, they are being decided by a common judgment and order.

(2.) On a written report (Exb. Ka-1), scribed by Dev Narayan Mishra (not examined), signed by Smt. Sobha Awasthi (PW-1), first information report (FIR) was registered at P.S. Auraiya, District Etawah on 21/8/1991 at 7.45 am, vide GD No. 15 (Exb. Ka-5) of which Chik FIR (Exb. Ka-4) was made/ prepared by Srinarayan Awasthi (PW-6). It is alleged in the FIR that the accused-Arvind Kumar (appellant in Crl. Appeal No. 1300 of 1993) and Akhilesh @ Pappu (appellant in Crl. Appeal No. 1217 of 1993) are both sons of Kunwar Pal and they live across Kharanja (vertical brick-laid road), right in front of the informant's house. It is alleged that informant's husband Satish Chand (the deceased) had built a latrine on the south eastern corner of her house which falls in front of Kunwar Pal's house. As the toilet was in front of Kunwar Pal's house, Kunwar Pal and his sons were not happy with it and were building pressure on the deceased to remove the toilet, but the informant's husband was not agreeable. Two days before the incident, the accused-appellants had threatened the informant in connection with that issue. It is alleged that in the night of 20/21/8/1991 while informant was sleeping in a room, on the southern side of her house and her husband (the deceased), her son (Saurabh) and daughters Km. Seema (PW-2) and Km. Tapasya were sleeping in the courtyard, where a lighted lantern was hanging as usual, at about 2 am, informant's sleep got disturbed because of noise. When she woke up, she saw that her husband (the deceased) was engaged in a scuffle with Arvind whereas Arvind's brother (Akhilesh) was pressing the mouth of her daughter (Km Seema-PW-2) to restrain her from screaming. It is alleged that as soon as the informant raised an alarm, Akhilesh exhorted Arvind to finish off the deceased. Upon which, a shot was fired by Arvind at the deceased, who fell and died. After firing the shot, Arvind and Akhilesh escaped by scaling the wall of the south-east corner of a bathroom of her house. The informant alleged that there was a third person also, who was sitting on the wall and keeping a watch on the incident and as soon as the incident was over, he ran away. In the report it is alleged that the entire incident was witnessed in the light of the lantern. It was also alleged that Shyam Sundar Mishra (not examined) had also noticed these three accused jumping off the wall and escaping in the light of a torch. Informant alleged that the third person is not known to her but she can recognise him if he is produced in front of her. The FIR also alleges that an empty cartridge was found lying at the spot. Upon registration of the FIR, inquest was conducted by S.I. R.N. Sharma (not examined) under the direction of PW-5. The inquest report (Exb. Ka-6) describes the body as having been laid on a Chadar (bed-sheet) spread on the ground.

(3.) The autopsy was conducted by Dr. R.N. Sharma (PW- 4) at about 3.30 pm on 22/8/1991. The autopsy report (Exb. Ka-3) recites:-