STATE OF U P Vs. RADHEY SHYAM

JUDGEMENT

(1.) ONE Hari Shanker died and his cousin brother Jag Mohan sustained injuries in the incident giving rise to this appeal. Radhey Shyam, Sri Ram, Anand (real brothers), Mohan Lal, Nidan and Rajvir were tried before V Additional Sessions Judges, Meerut in S.T. No. 39 of 1978 who acquitted them. Nidan and Rajvir were also real brothers being sons of Sunder Lal. Anand died during the pendency of the appeal and it abated in respect of him on 21 -4 -2005.

(2.) THE relevant facts should be stated shortly. The incident occurred on 10 -11 -1977 at 8.30 p.m. in village Budhsaini, Police Station Pilana, District Meerut and the F.I.R. was lodged the same night at 11.05 p.m. by an eye -witness Sukhi Ram PW 1 (father of the deceased). The accused Sri Ram and Radhey Shyam had a quarrel with their nephew Billu 15 or 20 days before the incident. They turned him out after the quarrel. Sukhi Ram PW 1 and his son Hari Shanker had sided with Billu and has assured him that they would help him in getting his share of property. Owing to this background, Radhey Shyam and others became annoyed of Sukhi Ram and Hari Shanker. On 10 -11 -1977 Deepawali festival was being celebrated in the village, Hari Shanker and Jagmohan lighted electricity inside their house and then went out. They stood on the adjacent Chabutara of Deepu Bhagat. Hari Shanker's brother Ram Kumar was lighting earthen lamps at the Chabutara of his house. At about 8.30 p.m. the five accused came over there and stood near the house of Deepu Bhagat. Rajvir, Mohan Lal and Sri Ram were having revolvers and remaining two were empty handed. Radhey Shyam and Anand accosted Hari Shanker and Jagmohan for siding with their nephew Billu and held out to teach them a lesson. Nidan accused then exhorted for firing shots and Radhey Shyam and Anand also asked others to kill them. Rajvir, Sri Ram and Mohan Lal then fired. Both of them (Hari Shanker and Jag Mohan) were hit. Both Hari Shanker and Jagmohan fell on that Chabutara receiving gunshot injuries. Sukhi Ram and Ram Kumar fled towards the injured persons. Hari Singh, Mahipal, Gopi, Ram Kishan and Deepu Bhagat, who were also standing there, challenged the assailants. They ran away. The injured were taken to P.L. Sharma Hospital and written report was lodged by Sukhi Ram. Both the injured were admitted in the hospital in the night itself. The following day at 9.55 a.m. Hari Shanker died due to the injuries sustained by him.

(3.) THE first four injuries had been caused by firearm and they were fresh. No blackening or charring was seen in firearm injuries.