PRATAP Vs. STATE OF U.P

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order dated 28.5.1981 (in S.T. No. 2 of 1981), by which the learned Sessions Judge, Unnao convicted appellant Pratap under Sec. 302 of I.P.C. and the appellant Kiron under Sec. 302 read with Sec. 34 of I.P.C. and sentenced both of them to imprisonment for life, for committing murder of Devi Prasad on 25.5.79 at about 7.00 in the evening, within the limits of village Salepurwa, Police Station Fatehpur Chaurasi, District Unnao.

(2.) There appears to be no dispute on the point, that the relations between the deceased Devi Prasad and the appellants and their uncle Ganga Ram were strained enough, because of the pending civil suits, in respect of a house, situating in Kanpur. It was on 25.5.1979, that Devi Prasad accompanied by Gumani (P.W.2), had come to village Salepurwa to attend the marriage ceremony of the son of his relative Lallu, which was scheduled to take place on 26.5.1979. The prosecution came with a case, that Om Prakash (P.W.1), son of the deceased had also come in that evening, to attend that marriage. It was said that at about 7.00 p.m., while most of the invitees and villagers were busy in hearing recital of Katha, in side the house of Lallu, the deceased was resting on a cot, on a chabutra in front of the house of one Bishram and his son Om Prakash and Gumani were chatting, on the chabutra of Matru, just across the rasta. It was alleged that the two appellants reached there armed with country made pistols, and started abusing Devi Prasad, during the course of which, appellant Pratap fired at Devi Prasad, on the exhortation of Kiran. On the alarm raised by Gumani and others, the two appellants fled away. Devi Prasad died on the spot.

(3.) It is claimed that written FIR (Ext.Ka.1) was lodged on the same day, at 9.10 p.m., with police station Fatehpur-84, by Om Prakash (P.W.1), on the basis of which chik FIR (Ext. Ka.3) was recorded. It is further claimed, that S.I. Shri Jai Narain Pandey (P.W.4) reached the spot at 10.30 or 11.00 p.m., in the same night and found the dead body on a cot on chabutra of Bishram, but could not prepare inquest report etc. due to non-availability of adequate artificial light and the same was prepared on the next morning. Although the dead body reached the mortuary on 26.5.1979 at 4.30 p.m., as is evident from endorsement on the back of Ext. Ka-7, the post-mortem could be conducted on 27.5.1979 at 4.30 p.m. Dr. S.N. Srivastava, who performed the autopsy found two ante-mortem gun shot wounds, one of which was an entry wound and the other exit wound.