CHHOTAKU Vs. STATE OF U P

JUDGEMENT

(1.) Both these appeals have arisen out of the same incident and we propose to decide them together. In Criminal Appeal No. 897 of 1981, the appellant is on Chhotaku who was tried in Sessions Trial No. 409 of 1978 before Sri D.P. Srivastava, the then V Additional Sessions Judge, Gorakhpur. He was convicted under Section 302 read with Section 34 I.P.C. and sentenced to life imprisonment. Actually, the other appellant Sanehi of Criminal Appeal No. 712 of 1991 was also tried along with Chotaku in Sessions Trial No. 409 of 1978, but he absconded after his statement under Section 313 Cr.P.C. and as such the trial could not conclude respecting him. After hands were laid on him, the trial relating him also concluded by judgment dated 16.2.1991 passed by Sri V.B. Rai, the then V Additional Sessions Judge, Gorakhpur. He, too, came to be convicted under Section 302 read with Section 34 I.P.C. and sentenced to life imprisonment. It is under these circumstances that two appeals came to be filed by these two accused appellants.

(2.) In Criminal Appeal No. 897 of 1981, we heard Sri P.N. Misra, learned Senior Advocate assisted by Sri P.C. Srivastava for the appellant Chhotku and in Criminal Appeal No. 712 of 1991 preferred by Sanehi, none turned up from his side at the revision of the list, though on record he is represented by Sri. S.N. Tripathi and Sri K.A. Qayyum, Advocates. The appeal was filed through Sri K.A. Qayyum. We propose to decide this appeal also on merits as per the Supreme Court's ruling in the case of Bani Singh and Ors. v. State of U.P., AIR 1996 SC 2439 after hearing the learned counsel for the State and going through the record Sri A.K. Dwivedi, learned A.G.A. has been heard from the side of the State in both the appeals.

(3.) The background of the facts leading to the appeals may be stated briefly. The incident occurred on 1.7.1978 at about 1 P.M. in village Mahewa, P.S. Khorabar, District Gorakhpur and the F.I.R. was lodged the same day at 6.15 P.M. by Radhey Shyam PW 5 (nephew of the deceased Ramdeo Maurya). The Distance of the police station from the place of occurrence was about seven miles. To the east of village Abadi Mahewa at a distance of 300-400 paces, there was three Bighas land belonging to the deceased Ramdeo Maurya in which there was a hut in its middle part. On the fateful day in the noontime. Shyam Dulari PW 2 (wife of the deceased) and her husband Ramdeo went together to their hut where they took their meal. After finishing their meal, at the asking of Ramdeo, Shyam Dulari went to fetch water from the hand-pipe of Ram Naresh. It was at a distance of 100-125 paces from the hut. Meanwhile. Ramdeo laid down in his hut. While returning from the hand-pipe with water towards her hut, she heard the shouts of he husband and her attention was drawn towards him. She noticed both the accused inflicting knife injuries to her husband who was lying on his cot. She then ran towards her husband raising alarm on which witnesses Jai Prakash Mishra PW 3 and Vijai Narain, PW 4 who were in sight, also ran towards the hut raising alarm. Meanwhile, Radhey Shyam PW 5 (nephew of the deceased) who was going to his field from his house also arrived on hearing shouts. The accused were chased. Standing near papaya trees, the accused, flaunting their knives, threatened the witnesses with dire consequences in case they persisted in their chase. Frightened, they returned back to the hut where Ramdeo was lying in injured condition on a cot. On the same cot, he was brought by Radhey Shyam and others to District Hospital, Gorakhpur whereafter his medical examination took place at 2.10 P.M. He was admitted for treatment. Radhey Shyam wrote down the F.I.R. and lodged the same at the police station. Next day Ramdeo died in the hospital. The case was initially registered under Section 307 I.P.C. The investigation was entrusted to S.I. Shesh Nath Rai PW 9 and was concluded by Ram Naresh Mishra PW 10. At the time of his initial medical examination by Dr. I.P. Singh PW 6 on 1.7.1978 at 2.10 P.M. the following injuries were found on the person of the victim.