SHEO KUMAR PANDA Vs. STATE OF U.P.

JUDGEMENT

(1.) THESE two appeal arise out of a single judgment in Sessions Trial No. 60 of 1977. The judgment of conviction and sentence was recorded on 24.10.1977 by Sri J.P. Semwal the then II Additional Sessions Judge, Nainital, who found the accused persons guilty under Section 302/34 I.P.C. and sentenced them to imprisonment for life. Criminal Appeal No. 2476 of 1977 was preferred by three appellants, namely, Sheo Kumar Panda, Vijai Kumar Panda and Vijai Kumar Nai, while the other Criminal Appeal No. 2520 of 1977 was preferred by the fourth accused Sri Shailendra Kumar Misra. On appeal the appellants were released on bail. Two appellants, Sheo Kumar Panda and Vijai Kumar Panda, are reported dead as per the letter of the Chief Judicial Magistrate, Nainital dated 9.10.1991. The appeal on behalf of these two appellants, therefore, has abated. We are, accordingly, concerned only with two appellants, Vijai Kumar Nai and Shailendra Kumar Misra in these two appeals.

(2.) THE aforesaid order of conviction and sentence was recorded on proof of a charge under Section 302/34 I.P.C. stating that all the appellants, in furtherance of their common intention, committed murder of Narendra Kumar son of Sri Raghunandan Prasad on 18.12.1976 at about 10.00 p.m. in Mohalla Kanungoyan, police station Kashipur, district Nainital. According to the prosecution case, the deceased Narendra Kumar has developed certain illicit connection with one married lady Smt. Bimla. Vijai Kumar Panda and Sheo Kumar Panda were related to this lady and they took ill of this conduct of Narendra Kumar. It is stated that on the date of the occurrence Vijai Kumar Panda, Vijai Kumar Nai and Shailendra Kumar Misra came to the tea shop of the father of Narendra and asked Narendra to go to the house of Sheo Kumar Panda, the father of Vijai Kumar Panda, on the plea of settlement of the affairs between Narendra Kumar and Smt. Bimla. Narendra Kumar accompanied them and did not return till late in the night. The father and brother of Narendra Kumar went out in search when they saw Narendra Kumar being done to death by these four appellants whom they had identified in the light of the burning torch that they were carrying. A first information report was lodged with the police station thereafter in which witnesses were also named as having seen the incident.

(3.) P .W. 1 Rajendra Kumar, is the brother of the deceased Narendra Kumar. His father Raghunandan Prasad died about two months prior to the deposition of this witness. He narrated the prosecution story in full and stated about the role of Shailendra Kumar Misra, Vijai Kumar Panda and Vijai Kumar Nai who came there on a motor cycle to the tea -shop of father of Narendra. Vijai Kumar Panda asked his brother, Narendra, deceased, to accompany him as his father (of Vijai Kumar Panda) had called the deceased. The deceased went with Shailendra Kumar Misra on motorcycle, while Vijai Kumar Nai and Vijai Kumar Panda went on a rickshaw. When Narendra Kumar did not come back even up to quarter to ten at night they went in search of him and proceeded towards the house of Indra Raj, they found four accused persons surrounding Narendra Kumar. The accused Vijai Kumar Nai had a pharsa and Shailendra Kumar Misra had a Talwar. Sheo Kumar Panda exhorted Vijai Kumar Panda to kill Narendra Kumar as he had dared keep the mausi (mother's sister) of accused Vijai Kumar Panda. At this Vijai Kumar Panda asked Shailendra Kumar Misra and Vijai Kumar Nai to kill Narendra and started assault on him. Rajendra Kumar and Raghunandan raised alarm upon which witnesses Indraj, Sohan Lal, Khurshid, Chhunu Lal and Jagdish came there. Khurshid and Chhunu had lanterns with them and Jagdish had a torch. The accused persons threatened them that if any body dared to intervene they would kill them. None of these witnesses proceeded to save Narendra. Raghunandan came forward to intervene and to save Narendra Kumar, but he was assaulted by Sheo Kumar Panda. Narendra Kumar was done to death by repeated blows of weapons. Then Rajendra Kumar and Raghunandan went to the police station at Kashipur and a written report was lodged. This witness accepted that there was an illicit connection between the wife of Chetan Swaroop and deceased Narendra Kumar. In his cross -examination this witness has made certain relevant admissions. The deceased had disclosed to him that Sheo Kumar Panda and Vijai Kumar Panda had developed enmity with him and he apprehended danger from them. He further admitted that ten to twelve days prior to the incident his father had asked Narendra not to go with Sheo Kumar Panda alone. He went on to say that it was a dark night and he could not identify the colour of the dress of Shailendra Kumar Misra. He stated that on an earlier occasion Vijai Kumar Panda had attempted a knife blow on Narendra Kumar and only at 9.45 p.m. on that day this witness and his father apprehended that something wrong had happened. They left the tea -shop at about 9.45 p.m. after a deliberation as to why Narendra had not returned. They went on a cycle and carried a torch with them. According to him all the witnesses had assembled on the spot at the time of the occurrence. He makes a very important admission in his cross -examination that his father had asked the witnesses as to what had happened and as to why Narendra was killed. For the accused Shailendra Kumar Misra this witness makes an admission that he was a frequent visitor to the tea -shop and Shailendra Kumar Misra was in best of terms with Narendra Kumar. Shailendra Kumar Misra was not related to Shiva Kumar Panda in any manner. It was suggested, by the defence that he and his father were informed by Jagdish that Narendra Kumar was murdered and only then they went to the spot. He makes an important statement that he and his father left the shop open, when they proceeded to look for Narendra.