KAILASH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal filed by the accused appellant from judgment and order dated 25th of July 1981 passed by Sessions Judge Mirazapur in Sessions Trial No. 263 of 1980 State v. Kailash convicting the accused under Section 302 IPC and sentencing him to undergo imprisonment for life thereunder.

(2.) Brief facts giving rise to this appeal are that at 6.30 p.m. on 3rd of September 1980 Deep Nath, brother of the deceased lodged an FIR at police station Pannu Ganj District Mirazapur alleging that in the month of Asarh (July) that very year he along with his father Lalman and brother Hern Nath taking their cattle shifted to the jungle of village Chichlik from their village Jai Mohini; that at that very time Kailash, uncle of Deep Nath taking his cows came to village Chichlik and leaving his cattle there he went back to village Jai Mohini for getting paddy crop sown. In the month of September, 1980 Balram, younger brother of Deep Nath also came to village Chichlik taking their oxen. Hovel of Deepnath was situate at a considerable distance from that of Kailash at the outskirts of village Chichlik. There was also an embankment of bamboo in the eastern side of the hovel and Deep Nath used to tether his cattle at that place. At about 8.00 a.m. on 3rd of September 1980 Balram was standing at the opening of the said 'gher' (embankment of bamboo) that Kailash taking his gun reached there and asked Balram that cattle stock was not distributed between them justifiably and he would have all the she-buffaloes with him. Thereon Balram replied that partition of cattle had already taken place between them and they would not give any she-buffalo to him. Immediately Kailash fired a shot at Balram with his gun hitting him at his neck and sustaining the fatal injury Balram died on the spot instantaneously. The police registered a crime against the accused under Section 302, I.P.C. accordingly and made an entry regarding registration of the crime in the general diary.

(3.) S. I. Har Narain Yadav to whom investigation of the crime was entrusted recorded the statement of Deep Nath, the first informant at the police station itself and then proceeded to the scene of occurrence. He took halt at village Nauva Sota in the night as the village Chichlik was situate at a distance of about twenty three miles from the police station and the way to village; Chichlik was quite tedious through the jungle and there were streams, drains etc. on the way and there was no conveyance available as one had to go there either on foot or on bicycle. Next morning on reaching at the scene of occurrence the investigating officer inspected the site and prepared its site plan map (Ext. Ka 9). He also collected blood stained earth and simple earth from the site and prepared their recovery memo (Ext. Ka 10). He also picked up an empty cartridge lying near the dead body and prepared its memo (Ext. Ka 11). Then he drew inquest proceedings on the dead body of Balram and prepared the inquest report (Ext. Ka 12) and other necessary papers (Exts. Ka 13 to Ka 15) and entrusted the dead body in a sealed cover along with necessary papers to constables Ghanshyam Rai and Shiv Mangal to be taken to Roberts Ganj mortuary for its post mortem. He also recorded statements of the witnesses of 9th of September, 1980. Subsequently investigation of the case was entrusted to Station Officer P. N. Ojha under the orders of the Circle Officer.