BHUDEV Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal has been directed against the judgement and order of sentence passed by Sri K. K. Sharma learned Additional Sessions Judge, IV Court at Mathura in Session Trial No. 373 of 1979 u/S. 302, I.P.C. police station Sahpau, Mathura which arose out of Crime No. 48 dated 9-4-73 of the said police station. The learned Court below found the accused Bhudeo guilty for the offence and after hearing him on the ground of sentence convicted him to suffer R.I. for life for the said offence and he was pleased to acquit his wife Smt. Harkesha for the charge u/S. 302/114 I.P.C.

(2.) The prosecution case is that a FIR was lodged at the said police station Sahpau at 10.15 a.m. on 5.8.79 by one Mahendra Singh alleging that Smt. Harkesha wife of the accused Bhudeo supplied the licensed gun to Bhudeo who killed Madho Singh with a gun shot fired from the said gun. After the FIR was lodged the police took investigation which was completed by submission of charge-sheet on 19-9-79 against the accused persons Bhudeo and his wife Smt. Harkesha. The learned Chief Judicial Magistrate, Mathura took cognizance and after complying the provisions of Sections 207/209 Cr. P.C. committed the case to the Court of learned Sessions Judge on 10-12-79. The case was transferred to the learned trial Court below who upon hearing the learned counsel for the parties framed charges and explained the same to the accused persons who pleaded not guilty and claimed to be tried.

(3.) As per prosecution story the accused persons were living at a short distance from the house of the deceased at village Persora P. S. Sahpau district Mathura. The house of the accused was facing north and he had constructed a Chabutara infront of his house extending up to the common path way of the village. Across this path way the residential house of the deceased Madho Singh is situated. A small piece of land was acquired by deceased Madho Singh which was adjacent to the Chabutara of the accused.The deceased was to use that open piece of land for tethering his cattle and other alike purposes. The land belonging to the deceased was at a lower level than the level of the Chabutara of the accused. About a month earlier to the fateful incident accused had installed a hand-pump in their house and allowed refuse/excess water to flow towards the north after getting out from his doorsill towards that Chabutara. The water discharged from the hand pipe was to fall on the land of the deceased. The deceased resented to that action and wanted the accused to stop the water flowing over his land which he had acquired for keeping the cattle. Since about one month of the installation of the hand-pump exchange of heated words took place several times between Madho Singh (deceased) and the accused. On 5-8-79 at about 9.00 a.m. Madho Singh was levelling his land as the same used to get wet by the fall of water discharged from the hand-pump of the accused. Accused appellant wanted that the deceased to stop spreading earth on that vacant land of the decased as accused wanted to take his drain through that land. Altercation took place between them over that matter. Madho Singh deceased had given out that he would not allow the drain to pass over his land and he would not stop from levelling his own land which irritated the accused persons and then the accused appellant was supplied a gun his instance, by his wife. After getting the gun which was handed over to the appellant by his wife, the accused-appellant fired a shot from his licensed gun hitting Madho Singh near his neck as a result Madho Singh fell down and breathed his last. Thereafter the appellant and his wife ran away towards the south through their residential enclosure and bolted the door from inside and thereafter fled away from their house. A FIR was lodged at the police station by P.W. Mahendra Singh. The Investigating Officer came and conducted the investigation. He held the inquest and prepared inquest report and sent the dead body of Madho Singh for post mortem examination through a police guard. He collected materials as well as ocular evidence and took signatures of the witnesses on the seizure lists. The accused Bhudeo surrendered himself in Court along with his licensed gun and its licence. The I.O. with the leave of the Court took the gun and the spent up cartridge and sent those to the ballistics expert for comparison. Be it noted those spent up cartridge was found near the place of occurrence and was seized by I.O. against a proper seizure list. The post-mortem was conducted by Dr. Dinesh Kumar of district hospital at Mathura on 6-8-79 at 11.00 a.m. Dead-body of the deceased was dully identified by the police constable to that doctor.