NIZAMUL AND ORS. Vs. STATE OF U.P.

JUDGEMENT

(1.) The instant appeal has been filed against the judgment and order dated 3.9.1982 passed in Sessions Trial Nos. 441 of 1981 & 524 of 1980 by the learned Additional & Sessions Judge Gorakhpur whereby both the appellants have been convicted and sentenced under sections 302/149 IPC to undergo life imprisonment and three years rigorous imprisonment under section 148 IPC for committing the murder of Basant and Vindhyachal.

(2.) Accused Ram Adhar who has absconded since the commencement of trial and has evaded to face the trial is still absconding hence he shall hereinafter to be referred to as an "absconder".

(3.) The genesis giving rise to the prosecution case is that an F.I.R. vide Ext. Ka.1 was lodged by Ramanand (P.W.1) against three persons namely Paras, Ram Adhar (the absconder) and Nizamul and three unknown persons on 20.3.1980 at 8.05 p.m. in respect of an incident occurred at about 5.00 p.m. on the same day vide case Crime No. 68 of 1880 under sections 147/148/149/307/302 IPC contending that on 20.3.1980, the complainant and his brother Rajendra (PW.4) cousin Basant,Vindhyachal Singh Ramdhari and Prabhunath (P.W.3) reached on the bank of river Rapti situated near Chanda Ghat of village Malaon after collecting tehbazari at about 5.00 p.m, they saw that Paras armed with country made pistol, Ram Adhar and Nizamul equipped with gun accompanying with three unknown persons equipped with bomb and country made pistol were standing there with an intention to kill them. All the accused persons with common intention and object attacked upon them hurling abusive and pejorative words extending threats that it is the apposite opportunity to wreak vengeance of old animosity. On the exhortation and threats an unruly scene developed causing helter and skelter.Vindhyachal out of fear ran towards river and his brother Rajendra and other persons ran towards village Majgawan. Basant ran towards south where wheat was sown in the field. Ram Adhar (absconder) and Paras who were equipped with gun and country made pistol chased and fired at Basant. Nazimullah and his one associate equipped with country made pistol and bomb chased Vindhyachal Singh. Two unknown persons chased the complainant and his brother Rajendra Lal and others accompanying with them ran towards Majgawan. The complainant and his associates succeeded in saving their lives but his cousin Basant and Vindhyachal were done to death with the lobbing of bombs and indiscriminate firing made with country made pistol. The incident was witnessed by the complainant and the others but could not chase them due to fear. Leaving behind the dead body of Basant and Vindhyachal, he went to lodge the first information report for taking appropriate action. On the basis of the first information report, Ramji Rai (P.W.5) Head Moharrir prepared the chick report vide Ext. Ka.4 and registered a case in the G.D. Entry vide Ext. Ka. 5. After registration of the case, the investigating officer Gopalji Singh P.W.6 swung into action and recorded the statement of the complainant at the police station and thereafter reached at the spot at about 11.30 p.m. He collected plain and blood stained earth in separate container from the place of occurrence. He found the dead body of Basant in the field where wheat crop was standing. The dead body of Vindhyachal could not be found inspite of search. The inquest of Basant could not take place for want of light. The corpse of Vindhyachal was taken from the bank of the river rapti on 21.6.1980 at about 6.00 p.m. and from the same place seven empty cartridges were recovered. These incriminating article were kept in a sealed cover and the recovery memo was prepared. The investigating officer prepared the inquest report ,challan lash, photo lash on 21.3.1980 in respect of cadaver of Basant and Vindhyachal vide Ext Ka.6 and Ka. 11 respectively. The corpse of Vindhyachal and Basant was handed over in a sealed cover to constable Ram Agyan and Chhotak Singh at about 7.10 A.M. and 7.20 a.m. for being taken to mortuary.