KAPILDEO PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) CRIMINAL Appeal Mo. 318 of 1977 is directed against the judgment and order, dated 3-2-1977, passed by Sri S. C. Tyagi, the then Sessions Judge, Gorakhpur, in Sessions Trial No. 356-A of 1975, convicting the appellant under section 302 IPC, and sentencing him to life imprisonment. Another accused Budhai in the said Sessions Trial was acquitted by the Sessions Judge and the State of U. P. has also preferred an appeal which is Government Appeal No. 943 of 1977 against the said judgment. The order disposing of the above noted CRIMINAL Appeal shall also govern the said Government Appeal,

(2.) THE prosecution story, in brief, is that appellant Kapildeo Prasad and the acquitted accused Budhai and the deceased Chandrika Prasad were the employees of Signal Workshop, North Eastern Railway, Gorakhpur. THEy were friends amongst themselves and they often used to assemble in one road shop- cum- residence of appellant Kapildeo Prasad situate in the city of Gorakhpur by the side of Gorakhpur-Pipraich Road near and to the north of Asuran road crossing. Adjacent to its north was the one room tea stall of Janardan Rai PW 2. About 50 paces to its south was the grocery shop of Anant Prasad PW 1. Some other shops and houses also existed either side of the road in the locality at the relevant time. On August 17, 1975, at about 5.00 p. m., when Anant Prasad PW 1 was taking tea at the shop of Janardan Rai PW 2, heard noise of the deceased and appellant Kapildeo Prasad and that of the acquitted accused Budhai. THEy were abusing each other inside the shop of Kapildeo Prasad. Both Anant Prasad and Janardan Rai rushed to the hut of Kapildeo Prasad out of curiousity. THEy saw Kapildeo Prasad striking Chandrika Prasad with a Rapi (a sharp edged instrument used by cobblers) on his chest saying " Sale sau ki pahti note bhi jeb mem rakh liya ". THEy also saw that the acquitted accused Budhai held one of the hands of Chandrika Prasad. Chandrika Prasad fell down bleeding after the receipt of the Rapi injury. THE appellant and the acquitted accused Budhai went out of the hut and ran on the road to wards south to make good their escape. Anant Prasad PW 1 and Janardan Rai PW 2 along with Barku, who had a house in the vicinity, chased them shouting. Constables Narsingh Ojha PW 3 and Rajpati Yadav, who were coming from the opposite direction, succeeded in arresting both Kapildeo Prasad and budhai with the help of the witnesses. THE constables asked Anant Prasad to take Chandrika Prasad to the hospital and the two constables followed him with Kapildeo Prasad and Budhai in custody. Anant Prasad took Chandrika Prasad on a rickshaw to the Railway Hospital situate at a distance of about one furlong. Chandrika Prasad succumbed to his injury when his rickshaw reached the hospital. Anant Prasad scribed the report of the incident Ext. Ka-1 and handed over the same at the Police-station Cantt. at 5.30 p. m. the same evening. On the basis of this report, Head Constable Harihar Singh PW 5 scribed the first information report Ext, Ka-5 and registered a case in the General Diary Ext. Ka-6.

(3.) DR. B. G. Mathur PW 4 performed the post-mortem examination on the dead body of Chandrika Prasad at 12.00 noon on August 18, 1975. The age of the deceased was about 32 years and the time since death was about one day. Rigor-mortis was present on the upper and lower extrimities and the following ante-mortem injury was found on the dead body :- 1. Incised and penetrating would left side chest 1 1/4 " x 1 " x bone upper cavity deep going backwards with fracture of sternum underneath.