RAJBIR Vs. STATE OF U P

JUDGEMENT

(1.) Appellant Kailashi (A-4), father and his three sons Rajbir (A-1), Maharaj Singh (A-2) and Ram Narain (A-3) were tried by VIIth Additional Session's Judge, Agra in S.T. No. 195 of 1982, State Vs. Rajbir and others, for offences under sections 302, 302/34 I.P.C., P.S. Rakabganj, District Agra and were convicted for the said offences and sentenced to imprisonment for life vide impugned judgment and order dated 2.11.1982. While Rajbir (A-1) was convicted and sentenced under section 302 I.P.C., rest of the appellants (A-2),(A-3) & (A-4) were convicted and sentenced u/s 302/34I.P.C. It is this judgment of conviction and sentence, which has been called in question by the convicted accused in the instant appeal before us.

(2.) Recession of background facts, as was slated in the orally dictated FIR Ext. Ka-1 and later on recited during the trial by the fact witnesses informant Ramzan Khan P.W.1, Munshi P.W.2 and Poham Singh P.W.3, were that the informant Munshi and his sibling brother Radhey Shyam (deceased) and the appellants herein were all resident of Katghar Eidgah, P.S. Rakabganj, District Agra. Deceased earned his livelihood by running a milk dairy. Appellant (A-1) had purchased milk from the deceased but had not paid it's price regarding which the deceased was always raising a demand so much so that a day previous to the present incident, there was a verbal duel between the deceased and (A-1) on that score.

(3.) On the incident date 4.1.1982 at 12.30 P.M., on their way to Namner market, informant and Radhey Shyam (deceased) spotted (A-1) standing in front of his shop. Radhey Shyam (deceased) again repeated the expecto (demand of his money) on which (A-1) exhorted that his entire money will be repaid by eliminating him because he repeats expecto every day and immediately thereafter, at the instigation of (A-4), rest of the three (A-2), (A-3) and (A-4) charged and caught hold of the deceased on the road itself. (A-2) thereafter called upon (A-1) as to what he was looking for/what he was waiting for, and the deceased be murdered. On such an instigation (A-1) whisked out a knife and pierced it in the right side chest of Radhey Shyam. Infliction of injury resulted in injured squatting on the road pavement. Besides informant, the incident was witnessed by Nathi, Ramzan PW1, Poham Singh PW3, Inder, Jwala Prasad and many other passersby. After the assault, accused hurriedly shied away from the incident scene. Because of terror, nobody could muster courage to chase them. Informant put his injured brother Radhey Shyam (deceased) in a rickshaw and brought him to the District Hospital in Chhipi Tola locality where the doctor declared him dead. Meanwhile, family relatives of the informant also arrived in the hospital. Leaving the deceased's cadaver in the vigil of his family members, informant rushed to the police station Rakabganj at a distance of one kilometer, where he dictated incident FIR to the Head Moharrir at 1.30 P.M. same day and on it's basis, crime no. 9 of 1982, under section 302 I.P.C. was registered against the named assailants at the police station.