STATE OF U.P. Vs. PRABHAT

JUDGEMENT

(1.) The instant State Appeal has been preferred by the State of U.P. Against judgment and order of acquittal dated 21.9.1985 passed by Additional Sessions Judge, Farrukhabad in Sessions Trial No.283 of 1983 for offences under Sections 148, 302/149, 307/149 IPC, police station Mohammdabad, District Farrukhabad. By the impugned judgment, and order, trial court acquitted all the accused persons under the aforesaid sections of Indian Penal Code.

(2.) We may observe at the outset that out of six accused-respondents four accused persons, namely, Ishwar Dayal, Kailash, Pooran and Vishnu Dayal have died during pendency of this appeal. The fact of their death was duly inquired into by Chief Judicial Magistrate, Farrukhabad. In this regard a report was submitted vide letter number 107.CJM/14, dated April, 11, 2014, which is available on the record, intimating death of above four accused persons. The cases against aforesaid accused persons stands abated on account of their death. Now, there are only two surviving accused respondents, namely, Prabhat @ Prabhash and Brijesh.

(3.) Prosecution story, as emanates from the record suggests that complainant Keshav Kumar lodged a written report on 3.10.1982 at about 12.30 p.m. wherein it has been stated that the incident took place at 10 a.m. Complainant Keshav Kumar was coming back home from his field along with Ram Swaroop and Sarvesh who were moving ahead of him (complainant). Vinod and Subodh were coming from the eastern side of road on right side of the tubewell. As soon as, the complainant reached near tubewell of Ishwer Dayal, he saw Santosh Kumar and Kaushal Kumar (deceased) facing Vinod Kumar, proceeding towards home. As soon as, Vinod, Subodh, Santosh and Kaushal Kumar came in front of each other; complainant saw accused Prabhash armed with D.B.B.L. Gun, Ishwar Dayal armed with single barrel gun, Kailash armed with rifle, Pooran armed with Single barrel gun and Bishnu and Brijesh armed with countrymade pistols. All these accused persons were standing on the terrace (chabutara) of Ishwar Dayal. On seeing the complainant Keshav Kumar, Vinod, Santosh, Subodh and Kaushal Kumar, accused Kailash abused and yelled to kill them all since they all were together in front of door and the accused persons opened fire, which hit on the head of Kaushal Kumar, who died on the spot. Both Ram Swaroop and Subodh were hit by the pellets fired by the accused persons and sustained injuries on the right side of face and on right hand, respectively. Complainant Keshev Kumar, Ram Swaroop and Subodh sprinted themselves towards the shelter of the terrace of Ram Sewak, defying firing by accused persons. Thereafter, the villagers arrived on the spot. The motive for committing the crime was old enmity due to agricultural field. This first information report (Exhibit Ka-1) was lodged at Case Crime No.229 of 1982, under Sections 147,148, 149, 302 and 307 IPC at police station Mohammdabad district Farrukhabad on 3.10.1982 at 12.30 p.m.