SHIV BALI Vs. STATE OF U P

JUDGEMENT

(1.) U. S. Tripathi, J. The above two appeals have been preferred against the judgment and order dated 5-11-1981 passed by IIIrd Additional Sessions Judge, Fatehpur in Sections Trial No. 312 of 1980 convicting the appellants under Section 302 read with Section 34 IPC and sentencing them to undergo imprisonment for life.

(2.) THE prosecution story, briefly stated, was as under: Appellants Shiv Bali and Bhola are real brothers and sons of Baijnath. Appellants Ram Mani and Maheshwari are also real brothers and sons of Ram Gopal. Baijnath, father of appellants Shiv Bali and Bhola and Ram Gopal father of appellants Ram Mani and Maheshwari were real brothers. All the appellants and Satya Narain (P. W. 1) and his brother Deo Narain deceased were residents of village Datauli, P. S. Lilauli, District Fatehpur. Satya Narayan (P. W. 1) and Deo Narain deceased were residing at their Dera in village Burdawa to look after their cultivation. One Shambhu was cousin brother of the appellants. Shambhu had died leaving his widow Smt. Maharania, who was residing at village Aunsar, District Banda. Smt. Maharania had agricultural land in villages Garhi and Satkara. THE appellants were cultivating the plots of Smt. Maharania. Satyanarain (P. W. 1) and his five brothers including Deo Narain deceased purchased agricultural land of Smt. Maharania prior to 4-5-months of the occurrence of this case. Satya Narain (P. W. 1) and others applied for mutation of their name over the plots of Smt. Maharania Sheo Bali and Bhola on behalf of his son and Maiyadin brother of Ram Mani and Maheshwari appellants filed objection in the said mutation proceeding. On account of it, the appellants were having enmity with Satyanarain (P. W. 1) and Dev Narain deceased. On the night of 17/18-10-1979 Satyanarain (P. W. 1) and Dev Narain deceased had gone to watch their fields situate at Chandwa Har, as due to drought the people used to leave their cattle, which damaged crops. After watching their fields, they were returning to their Dera. In the way at about 10 p. m. they met with Saraju Prasad (P. W. 2) resident of village Mawaiya going to village Mawaiya. Devi Narain deceased asked Saraju Prasad (P. W. 2) as to where he was going so late in the night. Saraju Prasad told that he was going to his village Mawaiya. Dev Narain deceased told that it was not safe to go there in night and asked him to stay with him at his Dera. Saraju Prasad (P. W. 2) agreed to it and proceed alongwith them towards their Dera. When they are upto a distance 40-50 paces, the appellants came there. Satyanarain (P. W. 1) flashed his torch to see as who were they. On flash of torch Bhola Prasad appellant exhorted that they should be killed. On his exhortation all the appellants came near the deceased. Bhola was having Double barrel gun, Maheshwari was having a country made pistol and the remaining appellants were having Lathis. Hearing the exhortation Satyanarain (P. W. 1) and Dev Narain deceased started running. But in the meantime, Bhola fired two shots and Maheshwari fired one shot. THE shots hit Dev Narain deceased, who fell down on the spot and died. Satyanarain ran away and reached to his Dera. Saraju Prasad (P. W. 2) also escaped. In the morning Satyanarain (P. W. 1) came to his village Datauli and proceeded to P. S. Lalauli for lodging report. In the way to Lalauli, the village Chaukidar met him at village Kora Kanak and asked him as to where he was going. When he told him his purpose he told that the report of occurrence would be lodged at P. S. Ghazipur. From village Kora Kanak Satyanarain (P. W. 1) came to Ghazipur, where he prepared report (Ext. Ka-1) near a shop after purchasing paper and lodged the same at P. S. Ghazipur at 1. 10 p. m. Chik FIR (Ext. Ka-14) was prepared by Constable Heera Lal Srivastava, (P. W. 5) who made an endorsement of the same at G. D. report (Ext. Ka-15) and registered a case under Section 302 read with Section 34 IPC against Maheshwari Deen, Ram Mani, Shiv Bali and Bhola appellants. THE investigation of the case was handed over to Sri Saligram Tiwari I. O. (P. W. 3 ). THE papers relating to the case were received by the I. O. through Constable Om Prakash and Sukhram at about 4 p. m. at village Sankha. THE I. O. reached the place of occurrence at 6. 30 p. m. where he interrogated Satyanarain (P. W. 1 ). He appointed Punchas and conducted inquest of the dead body of Dev Narain deceased and prepared inquest report (Ext. Ka-2) and other relevant papers (Ext. Ka-3 to Ka-5 ). He sealed the deadbody and handed over to Constable Om Prakash and Sukhram for taking it is mortuary. THE I. O. collected blood stained and simple earth from the spot and prepared recovery memo (Ext. Ka-7 ). He took into possession blood stained clothes of the deceased and prepared recovery memo (Ext. Ka-8 ). He also inspected torch of complainant, found it in working order and gave in the supurdagi of complainant, vide supurdaginama (Ext. Ka-9 ). On 19-10-1979 the I. O. inspected the place of occurrence and prepared site plan (Ext. Ka-10 ). THE autopsy on the dead body of Dev Narain deceased was conducted on 19-10-1979 by Dr. Prakash Joshi (P. W. 4), who found three gun shot wounds entry and two gun shot wounds of exit on the person of deceased as ante mortem injuries and cause of death as shock and haemorrhage. THE Doctor prepared post-mortem report (Ext. Ka-13 ). THE I. O. completed remaining investigation and challaned the appellants, vide charge-sheet (Ext. Ka-11 ). THE cognizance of the case was taken by the Magistrate, who committed the case to the Court of Sessions. THE appellants were tried for the offence punishable under Section 302 read with Section 34 IPC. THE appellants pleaded not guilty and contended that litigation had taken place between Bhola and Shiv Bali appellants on one hand and Satyanarain (P. W. 1) and his father Prabhu Dayal on other hand in Revenue Court. A case under Section 307 IPC was also initiated between Ram Mani and Maheshwari appellants on one side and Satyanarain on the other side. THEre was strong enmity between the parties. Dev Narain was murdered in the night. His body was found in the morning and the appellants were falsely implicated on account of above enmity. Appellant Ram Mani further contended that Satyanarain had married his niece in a lower family and he and his family members had not participated in the marriage and they also persuaded other villagers not to participate in the said marriage and therefore he and his brother Maheshwari were falsely implicated. Appellants Maheshwari and Ram Mani also pleaded their alibi. THE prosecution in support of its case examined Satyanarain (P. W. 1) and Saraju Prasad (P. W. 2) as witnesses of fact, besides Salikram Tiwari, I. O. (P. W. 3), Dr. Prakash Joshi (P. W. 4) and Heera Lal Srivastava (P. W. 5) as formal witnesses. THE appellants did not adduce any evidence in their defence.

(3.) BOTH the appeals have been directed against the same judgment and order and same question of fact and law are involved in both the appeals. Therefore, both the appeals are being disposed of by common judgment with the consent of parties learned Counsel.