KAPILDEO PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Criminal Appeal No. 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 Sec. 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 curiosity . 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 mein 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 towards 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.) Sub -Inspector, Ram Adhin Singh PW 8, took up the investigation and he rushed on a jeep to the Railway Hospital alongwith S.I. Jharkandey Rai and S.I. Ram Asis Misra PW 6. There in the hospital, he found the dead body of Chandrika Prasad in the portico and the Appellant and the acquitted accused Budhai in the custody of the two constables. He interrogated the two accused. On a statement made by Kapildeo Prasad that he could produce the Rapi he was entrusted to the custody of S.I. Ram Ashish Misra who proceeded along with the Appellant to effect the recovery.