KALLOO Vs. STATE OF U P

JUDGEMENT

(1.) Kalloo appellant has filed criminal appeal No. 1228 of 1978 while appellant Chauthi has filed criminal appeal No. 1382 of 197& against the Same judgment and order dated 21.4.1978 passed by Sri B.N. Mohiley, II. Additional Sessions Judge, Mirzapur, whereby he has convicted both of them under Section 307/34 I.P.C. and sentenced each of them to five yearsT rigorous imprisonment.

(2.) The prosecution case, briefly stated, is that at about 10.30 P.M. on 2.6.1976 near the pumping set of Vijai Shankar Dubey in village Tilthi within police station Chilah, district Mirzapur, the injured Lallo Mishra alias Gaya Prasad, Mohan Lal Dubey and Yadunath Singh were talking about their family affairs. The appellants Kalloo and Chauthi came there is the company of one Jhallar. Kalloo and Chauthi were armed with country made pistol and on the exhortation of Jhallar, they fired on shot each, on Lallo Mishra alias Gaya Prasad on account of old enmity. The accused persons were recognised in the light of the pumping set but they could not be arrested at the spot and succeeded in making good their escape. The F.I.R. of this incident was lodged by Mohan Lal Dubey at 4.30 A.M. on 3.6.1976 at police station Chilah, district Mirzapur. Thereafter the injured Lallo Mishra was examined by Dr. V.P. Gupta at 7.00 A.M. on 3.6.1976. The Doctor found two abrasions, one blister and a multiple gun shot injury on the person of Lalloo Mishra. In the opinion of the Doctor, injuries Nos. 1, 2 and 3 were simple but fourth was kept under observation and advised away. That injury was x-rayed by Sri A. Habib (P.W. 10). After registration of the case against both the appellants and Jhallar the investigation was entrusted to Vijai Narain Pandey, Station Officer Police Station Chilah, district Mirzapur, who recorded statements of the prosecution witnesses and completed other formalities, and thereafter submitted charge sheet against all the three persons, including the appellants.

(3.) The appellants denied the charge, pleaded not guilty and claimed to be tried. The prosecution examined Mohan Lal Dubey (P.W. 1), Gaya Prasad alias Lalloo Mishra (P.W. 2) and Yadunath Singh (P.W. 8) as eye witnesses of the incident. Out of them, Yadunath Singh (P.W. 8) did not support the prosecution case and was declared hostile by the prosecution. The prosecution also examined Jai Shanker Mishra (P.W. 3) in order to prove recovery memos Ext. 1 and 3. Dr. D.D. Tripathi had operated upon the injury of injured and took out the pellets and he was examined as P.W. 4. Dr. V.P. Gupta (P.W. 5 had examined the injuries of Gaya had alias Lalloo Mishra, while P.W. 6 Kanhiaya Lal is the person who scribed the F.I.R. at the dictation of Mohan Lal Dubey. Ram Dharai Yadav (P.W. 7) Clerk Constable was examined to prove the chick report and other formalities. Vijai Narain Pandey (P.W. 9) was the Station Officer of police station Chilah and he was examined to prove the various stages of the investigations made by him, while P.W. 10 is. Dr. A. Habib, who is Radiologist and had proved the X-ray report of the injured Gaya Prasad alias Lallo Mishni.