STATE OF U.P. Vs. SHIV SHANKER

JUDGEMENT

(1.) We have heard learned A.G.A. appearing for the appellant-State, and Sri Shamsul Islam holding brief of Sri Rohan Gupta, Sri Sarvesh, learned counsel appearing for the respondents-accused. Perused the record.

(2.) This government appeal challenges the judgment and order dated 20.12.1982 passed by the VIII Addl. District & Sessions, Judge, Kanpur in Sessions Trial No. 370 of 1981: State Vs. Shiv Shanker & others, whereby accused-respondents, Shiv Shanker, Shiv Babu, Durga Prasad, Ganga Ram and Raja Ram were acquitted as they were found not guilty of the charges levelled against them.

(3.) Brief facts culled out from record are that the aforesaid five accused-respondents were committed to the court of sessions to stand their trial under section 302 I.P.C. read with Section 149 I.P.C.; that whereas Raja Ram was charged under sections 148 I.P.C. while remaining accused were charged under section 147 I.P.C. According to the prosecution story in the FIR complainant Jagannath along with his cousin brother Suresh was sitting at his door on 16.9.1981 at about 9.30 P.M. when accused Shiv Shanker came there and said to Suresh "CHALO CHAL KAR RUPIYA LE LO". He took Suresh with him and at about 9.30 p.m. a call of "BACHAO-BACHAO MARE DAL RAHA HAI" was heard from the South-West side of the village. On hearing the cry for help Mohar Singh (P.W.1) who was sitting at the door of Vikram, he along with Vikram, Ram Gulam, Maiku and also the complainant Jagannath along with Subedar, Babu Lal, Mohar Singh, Dipty Lal, Goverdhan, Shiv Prasad, Vikram, Ram Narain and Miththu reached the spot with lathi, danda and torches where they saw the accused assaulting Suresh, Puttan alias Ram Kishore with Talwar and Tabbal, accused-respondents- Shiv Babu, Shiv Shanker, Ganga Ram and Durga were pressing Suresh to ground in order to over power him while Puttan and Raja Ram were killing him; that when they challenged them, the accused persons ran towards the west but after chase were caught near the spot with their weapons used by them which were taken away from the hands of the accused; that in the morning Jagannath got a written report (Ex. Ka-1) scribed by Mohar Singh (P.W. 1) and went to police station-Sheorj Pur, where check report was prepared by Constable- Ram Shanker Yadav (P.W. 5) and first information report of the incident was lodged on 17.9.1981 at 10.45 A.M.