VIRENDRA UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been filed by accused appellants from judgment and order dated 17th of November 2003 passed by Additional Sessions Judge/Fast Track Court, Ghazipur in Sessions Trial No. 358 of 1998 State of U. P. v. Virendra Upadhyaya & another under Section 302 read with Section 34 IPC and sentencing each of them to imprisonment for life and a fine of Rs.10,000.00 and in default of payment of fine to undergo one year's rigorous imprisonment. Co-accused Badri Upadhyaya died during pendency of the trial and his trial was abated.

(2.) Brief facts giving rise to this appeal are that at about 8.45 p.m. on 25th of July 1998 Manoj Kumar Upadhyaya along with his brother Ram Bilas Upadhyaya who was posted as Block Development Officer at Beruadwari Block in District Ballia and alighted from the jeep were going to their house at Gahmar Patti Govind Rai within the limits of police station Gahmar District-Ballia; that as they reached in front of the house of Bhola Upadhyaya Virendra Upadhyaya and his brother Upendra Upadhyaya alongwith their father Badri Upadhyaya met them and that at the exhortation of Badri Upadhyaya that Ram Bilas should be shot dead Upendra Upadhyaya fired at him with country made pistol but that shot did not hit him and in the meanwhile his brother Virendra Upadhyaya fired at him with countrymade pistol hitting at his throat and receiving that injury he fell down. The said incident was witnessed by one Ashok Upadhyaya, Shobha Bind and several others who rushed to the scene of occurrence in the electric light and then all the three assailants fled away. Immediately Manoj Kumar Upadhyaya with the help of others took his injured brother Ram Bilas to Primary Health Centre Bhadaura where the doctor referred him to District Hospital Ghazipur as his condition was too serious and there was no time for recording his injuries. On reaching at the District Hospital injured Ram Bilas was declared dead by the doctor. Memo regarding the death of Ram Bilas Upadhyaya having received injuries was received at police station Ghazipur Kotwali from District Hospital Ghazipur at 10.40 p.m. the same night. Immediately Manoj Kumar Upadhaya went to police Station Ghamar and lodged an FIR of the said incident with the police there at about 00.30 midnight. The police registered the case under Section 302 IPC and made entry regarding registration of the crime in the general diary. Station Officer Shishir Trivedi who alongwith the police force was in his area received information on wireless regarding the murder of Ram Bilas Upadhyaya and registration of the crime regarding thereto at the police station. He also received papers regarding the said crime on the way while going back to the police Station. He went to the scene of occurrence in the midnight and deputed two police constables at the site. Then he searched for the criminals named in the FIR. He again went to the scene of occurrence early in the morning and inspected the site and prepared its site plan map (Ext. Ka 13). He also collected blood stained and simple earth from the scene of occurrence and also picked up identity card of Virendra Upadhyaya lying near the scene of occurrence (Ext. Ka 1) and prepared their memo (Ext. Ka.3). SI Bal Ram Yadav posted at police station Ghazipur Kotwali who received information regarding the memo sent by EMO from the District Hospital last night at 10.00 a.m. the following morning went to the mortuary at District Hospital Ghazipur and drew inquest proceedings on the dead body of Ram Bilas Upadhyaya and prepared inquest report (Ext. Ka 7) and other necessary papers (Ext. Ka 8 to Ext. Ka 11) and handed over the dead body in a sealed cover alongwith necessary papers to constable Ramesh Tewari and HG Chandra Deo Yadav for being taken for its post mortem.

(3.) Autopsy on the dead body of Ram Bilas Upadhyaya was conducted by Dr. Kamal Kumar Medical Officer, District Hospital Womens Ghazipur on 26-7-1998 at 3.15 p.m. which revealed below noted ante mortem injuries on the dead body.