SHANKER DAYAL TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS instant appeal has been filed by the appellant, Shanker Dayal Tewari against the Judgment and order dated 13.12.1978 passed by the IVth Additional Sessions Judge, Ballia in Sessions trial No. A-208 of 1974 convicting the appellant under Section 302/452, I.P.C. and sentencing him to undergo rigorous impisonment for one year under Section 452, I.P.C. and imprisonment for life under Section 302, I.P.C. though directing that both the sentences would run concurrently.

(2.) THE case of the prosecution is that on 26.2.1974 at about 7 a.m. when deceased-informant, Sarju Tiwari was brushing his teeth, sitting outside his house, the appellant, Shanker Dayal Tiwari, armed with a spear reached there alongwith three other co-accused namely, Uma Shanker, Rama Shanker and Shri Kant Tiwari co-accused, Uma shankar and Shri Kant started beating the informant, Sarju Tiwari with kicks and fists. In order to save himself the informant rushed towards his house but he was chased by the appellant along with his co-accused and inside the room the appellant struck his spear on the chest of the complainant. Hearing the cries of the deceased, Sarju Tiwari, brother to the informant and several other persons namely, Ramji, Gauri Shanker, Shri Ram and Vishwanath Pandey also arrived there. THE appellant ran away after causing the said injury to the victim along with co-accused. THE victim placed his hands on the injury and fell down. Subh Narain, P.W. 9 who is the son of the informant also arrived and took dictation from the informant which was , read over by the said Subh Narain P.W. 9 to his father, the informant and thereafter the informant was taken to the police station by Rameshwar Tewari P.W. 6 and Subh Narain, P.W. 9. THE said written report was handed over to Shri Vikrama Yadav, Head Moharrir, P.W. 5 who had prepared the formal F.I.R. (Ext. Ka 2) and registered a case at 8.30 a.m. against the accused under Section 452/323/307, I.P.C. and the injured informant was sent to Primary Health Centre, Notwa, where he was medically examined by Dr. Ram Surat, P.W. 2. Later on, the informant was shifted to the District Hospital at Ballia and on 1.3.74 at 4 p.m. his dying declaration was recorded by Shri B. K. Singh, Magistrate, P.W. 8 (Ext. Ka 16/1). THE informant succumbed to the injury on 2.3.74 THE post-mortem examination was conducted by Dr. Sabir Hussain, P.W. 12 on 2.3.74 and the postmortem report is Ext. Ka 20. On receiving the post-mortem report by the Investigating officer, the case was converted into one under Section 302, I.P.C. Shri Matacharan Pandey investigated the case, recorded the statements of the witnesses under Section 161, Cr. P.C. and prepared a sketch map of the site. Shri Ram Palat Yadav completed the investigation and submitted the charge sheet (Ext. Ka 19) against the appellant and other co-accused. All the four accused denied their involvement in the offence and pleaded their innocence and further contended that they had falsely been implicated in the case because of the old enmity.

(3.) LEARNED Additional Sessions Judge, Ballia after considering the case of the prosecution and the defence reached the following conclusions.