HARI SHANKER Vs. STATE O

JUDGEMENT

(1.) SUSHIL Harkauli, J. The four appellants herein were tried and convicted under section 302 read with section 34 IPC by the IIIrd. Additional Sessions Judge, Fatehpur, by Judgment dated 19. 9. 1985 in Sessions Trial No. 79 of 1984 and were sentenced to undergo rigorous imprisonment for life. The case of the prosecution is that on the morning of 28. 9. 1983 the Shiv Shanker (hereinafter referred as the deceased) had gone with one Uma Shanker and Ram Asrey of his village to ease himself at a nearby pond and while coming back from there, at about 6. 30 a. m. , at a place located about 40 paces from his house, the deceased was stopped by the accused, out of whom Hari Shanker was armed with his licensed gun and each of the remaining 3 accused was armed with country made pistols. Accused Hari Shanker fired upon the deceased with his licensed gun. The shot struck the deceased on the wrist of his right hand. The deceased tried to run away from the spot but was caught from waist by accused Ram Bharosey. Accused Vijai Shanker told Ram Bharosey to release the deceased and after release of the deceased by Ram Bharosey, the accused Vijai Shanker also fired. Shiv Shanker fell down whereupon remaining two accused also fired on him. The deceased Shiv Shanker died. Upon hearing the sound of firing, the complainant Amar Nath Mishra, father of the deceased, Girja Shanker, brother of the deceased and one Ram Ratan Yadav of the village reached the spot where they saw the accused running away saying that they had avenged (the murder of) their brother. The motive for the murder set up by the prosecution is that there was a dacoity with murder in the house of the accused Vijai Shanker in which the brother of accused Vijai Shanker had been murdered. In that incident complainant Amar Nath, deceased Shiv Shanker and three other persons are said to have been named as accused. Because of that incident the present accused are said to have been harbouring grudge, due to which they committed the offence in question.

(2.) THE FIR in the present case was registered under section 302 IPC at 11. 45 a. m. on the same day at P. S. Ghazipur, vide serial No. 19 of the General Diary. A written FIR had been submitted by the complainant, which is Ext. ka-1 and the chick FIR is Ext. ka-4. THE G. D. entry No. 19 is Ext. ka-5. THE case was investigated by S. I. Surya Kunwar Singh (P. W. 5) who visited the spot, prepared inquest report (Ext. ka-7) of the dead body, diagram and challan of the body. Site plan and other documents were also prepared. Blood stained and unstained earth sample was taken Shoes and chappals found scattered near the dead body with empty cartridges were collected.

(3.) SO far as informant Amar Nath (P. W. I) is concerned, it has been suggested on behalf of the appellant that he had admittedly reached the police station at around half past eight but the FIR was not lodged till 11. 45 a. m. There is an explanation by the informant in his evidence for this delay. He says that he had reached the police station with the written FIR at about half past eight, but the police kept him waiting for about three hours before registering his FIR. However, Ext-ka-17 is a G. D. Entry No. 17 of that very police station which is of that very day i. e. 28. 9. 1983 at 8. 55 a. m. which is on record and which says that at that time informant Amar Nath along with Lok Nath (Pradhan of the Village) and other villagers viz. , Gaya Prasad, Ram Vishal, Rarn Asrey and Chandra Shekhar had come to die police station and informed that at 6 - 61/2 O'clock his son Shiv Shanker had been murdered by Hari Shanker with his licensed gun and by Ram Bharosey with country made pistol. The other two accused are not named in the said G. D. ' Entry and the G. D. Entry also says that the informant had said that he would not lodge the FIR till his nephew Ravi Shanker who was a clerk in the Civil Court, Fatehpur comes back after consulting lawyers in Fatehpur.