(1.) This appeal is against the judgment and order dtd. 4/8/2010, passed by the Sessions Judge, Basti in Sessions Trial No.137 of 2007, arising out of Case Crime No.178 of 2007 (State Vs. Ram Gati alias Prem Chandra and others), P.S. Khalilabad, district Sant Kabir Nagar, whereby the appellant has been convicted under Ss. 302 and 452 I.P.C. and sentenced as follows: imprisonment for life and fine of Rs.5,000.00, coupled with a default sentence of six months, under Sec. 302 I.P.C.; and four years R.I. and fine of Rs.3,000.00, coupled with default sentence of three months, under Sec. 452 I.P.C. Both sentences to run concurrently.
(2.) Four persons, namely, Ram Gati @ Prem Chandra (the appellant), Vijay Kumar, Daya Shankar and Krishna Chandra were put to trial. The appellant was charged for offences punishable under Ss. 302 and 452 I.P.C. and Sec. 25/27 Arms Act whereas, co-accused Vijay Kumar and Krishna Chandra were charged for offences punishable under Ss. 452 and 302 read with Sec. 34 I.P.C. The fourth accused, namely, Daya Shankar, was charged for offence punishable under Sec. 120-B I.P.C. The appellant though was acquitted of the charge of offence punishable under Sec. 25/27 Arms Act but has been convicted for other offences as noticed above; whereas, co-accused, Vijay Kumar, Krishna Chandra and Daya Shanker have been acquitted. Hence, this appeal is confined to the accused-appellant (Ram Gati alias Prem Chandra) in respect of his conviction for offences punishable under Ss. 452 and 302 I.P.C. INTRODUCTORY FACTS
(3.) The prosecution case is that there was an old standing enmity between informant-Ram Shabad (PW-1) and the appellant on account of land dispute; that on account of this enmity, the appellant had always been on the lookout to cause harm to the informant and his family; that on 24/1/2007, while the informant was at his Baithak, his wife-Kishori (PW-10) and his elder daughter Nirmla (the deceased) inside the house and his younger daughter- Pramila (PW-2) outside, near the tap/tube-well, filling water, at about 7.15 pm, Ram Gati (the appellant), co-accused Vijay Kumar, Daya Shanker and Krishna Chandra came at the door of informant's house with country made pistol, Lathi/Danda and asked informant's younger daughter, namely, Pramila (PW-2), as to where her father and brothers were, when PW-2 refused to divulge any information about them, the accused persons entered the house; at this stage, informant's elder daughter Nirmla (the deceased) objected and warned the accused not to enter the house; on account of her intervention, Daya Shankar exhorted the accused, upon which, Ram Gati (the appellant) fired a shot at Nirmla, as a result, Nirmla died on the spot; on hearing the noise of gunshot, the informant, his wife (PW-10) and other villagers, namely, Surendra, Jhinku (PW-3), Babu Lal etc. arrived with Lathi/Danda and torch and challenged the accused, as a result, all the four accused escaped. By making all these allegations, written report (Exb.Ka-1) was lodged by PW-1 at police station Kotwali Khalilabad, district Sant Kabir Nagar where it was registered as Case Crime No.178 of 2007 at 20.35 hrs on 24/1/2007 of which chik FIR (Exb.Ka-5) and GD entry (vide report no.52) (Exb.Ka-6) was made by PW-5.