VIJAI SHANKAR MISRA Vs. STATE OF U P

JUDGEMENT

(1.) Appellants Vijai Shanker Misra. Dashrath Misra and Akshaibar have filed this appeal against their conviction under section 302 I.P.C. 307/34 I.P.C. and 302/34 I.P.C. Accused Vijai Shankar Misra was convicted under section 302 I.P.C. and was sentenced to life imprisonment. He was further convicted under section 307 I.P.C. read with section 34 I.P.C. and sentenced to undergo 7 years R.I.; whereas co-accused Dashrath Misra and Akshaibar were convicted under section 302 I.P.C. read with section 34 I.P.C. and sentenced to life imprisonment and they were further convicted under section 307 I.P.C. and sentenced to undergo R.I. for 7 years. All the sentences to run concurrently. The appellants were as such convicted and sentenced by the judgment dated 4.6.1977 of Sri G.D. Chaturvedi, 2nd Additional District and Sessions Judge Varanasi.

(2.) A revision was also filed against the appellants for the enhanccment of sentences by PW I Ram Shromani Misra and the said revision was admitted and notices were issued to the appellants.

(3.) The occurrence is alleged to have taken place on 17.4.1976 at about 8 p.m. in village Boochi, Police Station Phoolpur Distt. Varanasi the house of deceased Dhruv Nath who was the cousin of PW 1 Ram Shromani and while the deceased Dhruv Nath, PW2 Prahlad Misra, the brother of PW 1 Ram Shromani, Subhash Chandra, Ram Dular were sitting and talking at the door of Dhruv Nath Misra after returning from the court where they had gone to attend 107 case, the appellants Vijai Shanker Misra, Dashrath Misra and Akshaibar reached there and at the exhortation of Akshibar, the remaining appellants Vijai Shanker Misra and Dashrath Misra armed with Gadansha and spear respectively, had assaulted the deceased Dhruv Nath Misra and PW 2 Prahlad Misra and caused injuries to them. PW 1 Ram Shromani who was at that time inside his house, came out on hearing the noise and found Dhruv Nath Misra and his brother PW 2 Prahalad Misra in injured condition. The witnesses Ram Chandra Misra Lal Bahadur and other persons of the village also arrived at the scene of occurrence, whereupon the appellants made good their escape with their weapons. It is said that the said occurrence was seen by witnesses in the light of lantern which was burning at the door of the deceased Dhruv Nath. It is further alleged that Dhruv Nath Misra shortly after receiving the injuries, sat down and dictated the first Information Report EX. Ka 1 to PW 1 Ram Shromani Misra which was read over to him and, thereafter, Dhruv Nath Misra put his thumb impression on the same and then Ram Shromani Misra took both the injured on a cart upto Mangali Bazar with the help of other residents of the village and from there they were taken to police station Phoolpur on a Truck, where aforesaid the report Ex ka 1 handed over to Head Constable P W 5 Kremdev Yadav by PW 1 Shromani and on the basis of the aforesaid report Ex ka 1, the aforesaid head constable prepared a chik report Ex ka 6 at 12.IOA.M. on 18.4.1976 and registered a case under Section 301/34 IPC against the appellants in the General Diary of the Police Station Phoolpur which is Ex ka 7 and sent the injured to SS.PG Hospital Varanasi for medical Examination and treatment. PW 10 Ahsanullah A.S.I. was present at the Police station when the aforesaid report of the occurrence was lodged at 12.20 a.m. on 18.4.76 and both the injured were sent to S.S.P.G. Hospital Varanasi along-with PW 1 Ram Shromani Misra, Sri Ahsaullah A.S.I. left. The Police station Phoolpur for the scene of occurrence at about 1 a.m. on 18.4.76 and reached the village Boohi in the morning at about 6 a.m. There, he recorded the statements of witnesses Ram Chandra Misra, Lala Bahadur, Ram Lakhan, Dharm Jeet and PW 1 Ram Shromani Misra and he then inspected the place of occurrence and prepared the site plan which is Ex ka 20. He also found blood near the scene of occurrence and he took stained and unstained earth from there, and prepared FARD exka 2. He found two cots at the place of occurrence. He also found one lantern on the Chabutra of the deceased Dhruv Nath which is Ex ka 2 and prepared its recovery memo Ex ka 3 and handed over the same in the SUPARDAGI of the brother of Dhruv Nath, He then took the search of the house of appellants Vijai Shanker Misra and Dashrath and from their houses, he recovered one Lathi on which blood spots were found and he prepared its recovery memo which is Ex, ka. 5 PW 10 A.S.I. Ashanullah, there after, got information that the appellants Vijay Shanker Misra and Dashrath were concealing themselves in a sugercane field on the eastern side of village Boochi and he left for the field and arrested appellants Vijai Shanker Misra and Darshnath from that field and then he returned to the police station along with the appellants and deposited the recovered articles from the scene of occurrence in the Malkhana of the - police station and also lodged the appellants Vijai Shanker Misra and Dasrath Misra in the Lock up of the Police Station PW 10 Assanullah, A.S.I. again visited the village Boochi 19.4.76 and recorded the statements of Subhash chandra and Ram dular. He also searched for the accused Akshaibar but he was not found there. Then, he left for S.S.P.G. Hospital Varanasi and there, he recorded the statement of PW 2 Prahlad who was admitted there in the hospital and there he was informed that other injured Dhruv Nath was sent from S.S.P.G Hospital to B.H.U. Hospital Varanasi for treatment as his condition/further deteriorated.