WAZIBULLAH AND ORS. Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS appeal was filed by three appellants, namely, (i) Wazibullah, (ii) Santraj and (iii) Mangar against judgment and order dated 22-9-1980 passed by Sri D.P. Srivastava, the then V Additional Sessions Judge, Gorakhpur in Sessions Trial Nos.149 and 169 of 1979. Wazibullah and Santraj were tried in Sessions Trial No. 149 of 1979 whereas Mangar was tried in Sessions Trial No. 169 of 1979. Sessions Trial No. 149 of 1979 was treated as the leading case and both the sessions trials were decided by a common judgment. The three accused appellants were convicted under Section 396 I.P.C. and sentenced to life imprisonment. Out of them, Wazibullah and Mangar died during the pendency of the appeal and the same abated respecting them by order dated 13-2-2003.

(2.) THE Court is presently concerned only with the appellant Santraj. His bail was cancelled on 9-4-1998, but he came to be arrested long after when the non-bailable warrant was again directed to be issued against him on 9-1-2003. Presently he is in jail. Sri Apul Mishra has been appointed as amicus curiae to argue out the appeal for him.

(3.) THE facts lie within a short compass. Jagarnath Dubey deceased was resident of village Domingarh, P.S. Chilwatal, District Gorakhpur. He was a money lender. On 1-4-1979 he was returning from City Gorakhpur to his village via Mohalla Ilahibagh after realising dues from his debtors. At about 8.30 p.m. when he happened to arrive near the culvert situated in Mohalla Bahrampur within P.S. Rajghat, Gorakhpur, he noticed that five persons were sitting on the culvert. One of them fired from his countrymade pistol on him when he happened to reach near the culvert. It, however, did not hit him. Then he (Jagarnath Dubey) flashed his torch and identified the miscreants Ratan Kewat, Mangar Ghosi, Santraj Kewat, Wazibullah and one unknown person. Then all the said four accused along with their unknown companion pounced upon Jagarnath Dubey and started grappling with him. He raised alarm attracting the witnesses Awadh Kishore Tripathi PW 1, Ram Prasad Pandey, Mithai Lal PW 2 and Subhash Mani Tripathi. Meanwhile, the accused appellant Santraj fired from his countrymade pistol as a result of which Jagarnath Dubey received fire-arm injury and thereafter the accused snatched his licenced single barrel gun, six live cartridges, a wrist watch and a bag containing Rs. 100/- as also two blouses. The witnesses unsuccessfully chased the accused.