PAHALWAN Vs. STATE OF U P

JUDGEMENT

(1.) A. B. Srivastava, J. The IIIrd Additional Sessions Judge, Shahjahanpur vide his judgment and order dated 26-1-1980 in Sessions Trial No. 584 of 1978 convicted accused-appellant Pahalwan in Criminal Appeal No. 194 of 1980 of the offence under Section 302 of the I. P. C. and sentenced him to imprisonment for life, acquitted him of the charge under Section 148, I. P. C. and his co-accused persons Moti Lal, Bhagwan Sahai, Sunder Lal, Ram Asrey, Shiv Kumar and Chandra Mohan (respondents in Government Appeal No. 632 of 1980) of the charge under Sections 148 and 302/149, I. P. C. while Pahalwan has preferred appeal against his conviction, the State has preferred the connected appeal against acquittal. Both the appeals have been heard together and are being disposed of by a common judgment.

(2.) THE deceased Chnotey Lal, his elder brother informant Bade Lal (PW 1) are residents of village Raghunathpur within jurisdiction of Police Station Jalalabad, District Shahjahanpur, six of the eight accused persons, named in the F. I. R. of this case, Pahalwan, son of Lalloo Lal, Moti Lal, Bhagwan Sahai, Sunder Lal, Ram Asrey, all sons of Natthu Lal and Shiv Kumar, son of Raja Ram, are also residents of village Raghunathpur, whereas Chandrabhan and Moheny are residents of village Khandahar within jurisdic tion of the same Police Station, while charge-sheet was submitted by the investigating agency against all the aforesaid eight accused persons, the trial took place only of seven of them, as Mohney was absconding. 2-A. THE prosecution story, in brief, is that about 16 days before the incident of this murder, there had taken place another incident of exchange of fire between deceased Chhotey Lal and Ram Gopal on one side, and accused Pahalwan and his fellow men on the other. Although no one from either side was injured in the said incident but a goat belonging to Ram Niwas was killed. Cross-reports, one by accused Bhagwan Sahai and the other by Ram Niwas, had been lodged regarding the said incident at the Police Station. THE rela tions between the two sides were strained on account of the said incident. On the date of occurrence, H-9-1978, at about 8 a. m. , it is alleged, Chhotey Lal left his home for going to Jalalabad market. He had proceeded to a dis tance of about 100-150 yards towards South East of his House and was passing from the Pagdandi between the chari field of Deen Dayal and the field of Luxman Prasad, when he was accosted by the eight accused persons, all armed with fire-arms, Chhotey Lal raised alarm exhorting to rush to save him, hearing which informant Bade Lal who was tethering cattle in front of his house, Jhabba (PW 3), resident of village Khandahar, who was talking to Nabbu Lal under a Pakad tree towards north of his house, Brahm Swarup (PW 4) who was in his baithak', situated at a distance of about 60-65 steps towards west of the place of occurrence, Nabbu Lal and his son Drigraj, rushed towards the scene of occurrence. THEy saw accused Moti Lal, Bhagwan Sahai, Chandra bhan and Mohney, armed with guns, Pahalwan, Sunder Lal, Ram Asrey and Shiv Kumar armed with pistols, having caught Chhotey Lal on the Pagdandi towards North of the Chari field of Deen Dayal. Accused Mohney exhorted accused Pahalwan to shoot Chhotey Lal, whereupon Pahalwan by his country-made pistol shot at Chhotey Lal who was injured and fell. Seeing this, when the persons rushing towards the scene of occurrence raised alarm, all the accused persons made good their escape by fleeing towards east in the direction of village Kareli, Chhotey Lal died instantanieously on account of the fire-arm injury caused to him.

(3.) IN the opinion of the Doctor vide post-mortem examination report (Exhibit Ka 3) death of deceased had been caused due to shock and haemor rhage on account of gun-shot wound in abdomen fired from a distance of.