PREM SHANKER Vs. STATE

JUDGEMENT

(1.) This appeal by Prem Shanker is directed against his sentence and conviction to undergo imprisonment for life under Sec. 302/149 IPC, one years' R. I. under Sec. 147 IPC, 5 years' R. I. under Sec. 365/149 IPC, five years R. I. under Sec. 324/149 IPC and six month's R. I. under Sec. 323/149 IPC the sentences, however, were ordered to run concurrently by the learned Additional Sessions Judge, Hardoi.

(2.) One Ram Laraite has a house in village Mansoor Nagar. This house opens on the north. His chaupal lies at a distance of 2 to 3 paces and it is to the west of the main door of the aforesaid house. There is a courtyard in his house and in the west of that courtyard there are kotharis. To the north of the aforesaid courtyard is a chappar. The eastern wall of Ram Laraite's house is about three and half feet in height. A path runs east -west and is to the north of his house. This path takes a turn towards south from the north east corner of his house. The house of Arjun Lai also opens in the south and it lies in front of the house of Ram Laraite, being situate across the path way. Ram Krishan is father of Ram Laraite. Virendra, Ram Prakash, Om Prakash, Raj Kumar and Ved Prakash are sons of Ram Kisjjan. Shyama Kumar was also a son of Ram Kishan. Smt. Ram Sri is wife of Ram Laraite. At the time of this occurrence, Shyama Kumar was aged 18 years, while Virendra was aged 21 years. The remaining sons of Ram Kishan were, however, minors. One Miththu, a workman working at brick kiln at Hardoi was also sleeping at the house of Ram Laraite in the relevant night. The present accused Appellant, Prem Shanker, has got two brothers, namely, Shiv Shanker and Hari Shanker. Ram Swarup is their father. Puttu Lal is brother of Ram Swarup. Prem Shanker, Shiv Shanker, Hari Shanker, Puttu Lal and Om Prakash along with Lal Bihari also reside in village Mansoor Nagar. Darbari and Bhagwan Din, who are real brothers, are residents of village Tilak Purwa, which lies at a distance of about one and a half miles from village Mansoor Nagar. The present Appellant as well as the other accused noted above, who were acquitted by the learned Additional Sessions Judge and with whose cases we are not concerned inasmuch as no appeal against their acquittal has been filed, were well known to the eye witness examined in this case. It is alleged that 10 or 12 days previous to this occurrence, Virendra, brother of Ram Laraite, had kidnapped Vishuna Kumari, sister of Shiv Shanker accused of this case. Report of this kidnapping was lodged at P. S. Kotwali on 3rd of December, 1971, against Virendra and three others. 7 or 8 days subsequent to the aforesaid kidnapping, Shiv Shanker and Darbari accused had gone to Ram Laraite. They had complained about the overt act done by Virendra and had warned that if Vishuna Kumari was not returned, they would massacre everyone in his family and would also abduct his wife. This kidnapping of Vishuna Kumari, according to the prosecution, prescribed a motive for the accused, including the present Appellant, to commit the offence with which the present Appellant and the co -accused were asked to stand trial.

(3.) The prosecution story now reads in this way that in between the night of 14 & 15 - -12 - -1971, Ram Laraite along with his wife Smt. Ram Sri and his son, about three months old, together with Shyama Kumar was sleeping in the Kothari. A Lantern was burning there. Ram Laraite's mother and his other brothers were sleeping underneath the chappar inside the house. Ram Kishan and Miththu were sleeping in the Chaupal. Some miscreants are said to have scaled the eastern wall of the house of Ram Laraite. They had opened the main door on account of which the inmates of the house had woken up. The miscreants had also broken open the doors of the Kothari where Ram Laraite was sleeping and this kothari was entered by the present Appellant accompanied by several other persons including Shiv Shanker, Bhagwan Din, Hari Shanker, Darbari, Om Prakash and Lal Bihari. Shiv Shanker and Lal Bihari were said to be armed with guns. Bhagwan Din and Darbari were armed with pistols, Prem Shanker the present Appellant, Hari Shanker, Om Prakash and Puttu Lal were armed with Lathis, the unknown persons, who accompanied this party, were farmed with Kantas. All these persons were said to have caught hold of Smt. Ram Sri and started dragging her outside. The alarm raised by Ram Laraite, Smt. Ram Sri, Shyama Kumar, Ram Kishan and Miththu had brought several persons to the spot. Ram Kishan and Shyama Kumar as well as Miththu tried to obstruct the accused from forcibly abducting Smt. Ram Sri and thereupon Ram Kishan and Shyama Kumar were given Lathi blows and blows with the butt ends of the guns. Shyama Kumar had actually tried to release Smt. Ram Sri from the clutches of the accused whereupon 2 or 3 shots were fired by the accused on account of which Ram Laraite, Ram Kishan, Miththu and Shyama Kumar got firearm injuries. Shyama Kumar fell down. Ultimately the accused managed to drag away Smt. Ram Sri along with her child, three months old, and the party went towards east. Several persons had been attracted to the scene of occurrence on hearing hue and cry like Arjun Lal, Dwarika, Suresh and Shambhu Dayal, and they had witnessed the occurrence. After the departure of the accused, Shyama Kumar was removed in the Chaupal and there he breathed his last. Out of fear, no one dared to go to lodge F. I. R. Ram Laraite's uncle, Bhagwat Sahai, was summoned from Abdul Purwa a Mohalla in the city of Hardoi and on his arrival F. I. R. Ext. Ka. 5 was prepared in the morning and the same was lodged by Ram Laraite at Police Station Pihani on 15th December, 1971, at 9.30 a.m.. In this F. I. R. the names of alt the accused, including Prem Shanker, were noted as having taken part in this incident. The motive for this occurrence was also clearly mentioned. The weapons carried by the accused were also mentioned and that the abduction of Smt. Ram Sri along with the child was also noted. The names of the injured were also noted in the F. I. R., and it was further noted that Shyama Kumar had already died. The names of the witnesses, who had come to the scene of occurrence, were also given. Investigation was taken up by Sheo Lakhan Singh, Sub -Inspector who reached the spot at about 1 P.M. on 15th December, 1971. He found the dead body of Shyama Kumar at Chaupal. He prepared an inquest report and then sealed the dead body, and sent it for autopsy. He took possession over blood stained Kothri and pual, and after sealing them in separate bundles, prepared a memo. He inspected the spot and prepared a site plan. He found the two lanterns in working order. He found on the spot three spent cartridges, two big and 30 small pellets, some tiklis and some wads. He took possession over these and after sealing them prepared a memo. He made a search for the accused, but found them absconding. He deputed informers to trace out Smt. Ram Sri. The autopsy upon the dead body of Shyama Kumar was done by Dr. Bilgrami, Medical Officer, Police and Jail, on 16th December, 1971, at 1 p.m.. The following ante mortem injuries were found upon the dead body.