KAUSHAL KISHORE Vs. STATE OF U P

JUDGEMENT

(1.) Both these appeals have arisen out of one and the same judgment dated 20-4-81 in sessions trial No. 65 of 1980, State v. Kaushal Kishore and sessions trial No. 470 of 1980 State v. Kewal Kishore passed by IV Additional Sessions Judge Fatehpur convicting all the accused appellants under Section 396, IPC and sentencing each of them to imprisonment for life thereunder. Co-accused Shanker was acquitted by the Court below by the same judgment. Against judgment and order of K. K. Srivastava, IV Addl. Sessions Judge, Fatehpur, D/- 21-4-1981.

(2.) Since Criminal Appeal No. 799 of 1981 Kaushal Kishore v. State of U. P. was filed on behalf of all the accused appellants Criminal Appeal No. 901 of 1981 Ram Pal v. State of U. P. has become redundant.

(3.) Brief facts giving rise to this appeal are that at 8.00 a.m. on 25-7-79 Jagat Pal Singh resident of village Lahauri lodged a report at Police Station Hussainganj, District Fatehpur situate at a distance of about seven miles from the place of occurrence contending that at about 7.30 p.m. last evening i.e. 24th of July 79 he was going to have his food and his brother Raj Bahadur Singh was teaching the children in the varandah and a burning lantern was kept there diffusing sufficient light. Near the main gate of the house and Ahata his nephews Chandra Has Singh and Chandra Kant Singh were talking to his 'behonoi' Chandra Bhan Singh and his servant Ram Sajiwan was giving fodder to the cattle. A burning lantern was hanging at the main door of the house and a kerosene 'dibbi' was lighted in the kitchen in verandah; that all of sudden 10-12 bandits armed with guns, countrymade pistols, axe, lathis and dandas entered his house including 3-4- bandits putting on 'dhatas' on their faces. On entering the house and sighting Raj Bahadur Singh one of the bandists who was putting on 'dhata' shouted that he should be killed; that in the meanwhile Raj Bahadur Singh ran towards the eastern verandah for picking up his licensed gun with cartridges belt hanging of a peg that three bandits putting on 'dhatas' caught hold of him and a scuffle took place between them. In the course of scuffle 'dhatas' of all the three bandits got opened and in the meanwhile Har Kishore fired at Raj Bahadur Singh with gun from close range hitting him at his back and sustaining the fatal injury Raj Bahadur Singh fell down in the 'angan' and succumbed to the injuries sustained by him then and there. In the meanwhile "Shanti Devi wife of Raj Bahadur Singh ran for his rescue but the bandits caught hold of her and beat her asking whereabouts of the property. One of the nephews of Jagat Pal set fire to the 'Karies' (dried stems of 'Arhar'} kept outside the house and the Ahata which created sufficient light. Chandra Has ran towards the village abadi raising hue and cry and Chandra Bhan Singh along with Chandra Kant went towards Murain Ka Purva. On hearing the sound of shots fired and hue and cry raised several co-villagers including Gauri Shankar, Sita Ram, Vijay Bahadur Singh and Badlu rushed to the scene of occurrence flashing their torches. Vijay Bahadur Singh and other co-villagers residing in neighbourhood started firing and then all the miscreants fled away with the looted property comprised of his licensed single barrel gun with cartridge belt containing twenty two cartridges, one transistor etc. Inmates of the house and the witnesses recognized Kaushal Kishore, Har Kishore and Awadhesh in the light of lantern, torches flashed and the fire ignited to the stacks of 'Arhar' stems kept there and recognized other bandits well in the said light and could identify them if seen later. It was mentioned in the FIR that several years ago Govardhan, father of accused Kaushal Kisore was murdered and Raj Bahadur Singh and Vijay Bahadur Singh alias Mathura Singh, brothers of Jagat Pal Singh were prosecuted in that murder case but that case ended in their acquittal and that since then Kaushal Kishore and his family members started nursing grudge against them. It was also mentioned in the FIR that dead body of Raj Bahadur Singh was lying inside the house and his wife had also sustained injuries and that because of fear and also because the drain was full of water he could not go to the police station to lodge FIR of the occurrence in the night. The police registered a crime against the accused under Section 396, IPC and made entry regarding registration of the crime in the GD (Exts Ka 19 and Ka 20).