DURGA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) -This is an appeal against the judgment and order dated 19.2.1981 passed by the VIIIth Additional Sessions Judge (Non-Metropolitan Area), Kanpur in Sessions Trial No. 208/1979 convicting the appellant Durga Prasad and sentencing him to life imprisonment under Section 302, I.P.C., 7 years imprisonment under Section 307/149, I.P.C., two years imprisonment under Section 148, I.P.C. and one year imprisonment under Section 323/149, I.P.C., appellant Arvind Kumar two years imprisonment under Section 148, 7 years imprisonment under Section 307, I.P.C. life imprisonment under Section 302/149, I.P.C. and one year imprisonment under Section 323 read with Section 149, I.P.C. The remaining 8 appellants namely, Ram Sewak, Sajivan, Ashok Kumar, Jai Prakash, Babu Lal, Jawahar son of Moti Lal, Sidh Nath and Ram Narain have been sentenced to life imprisonment under Section 302/149, 7 years imprisonment under Section 307/149, I.P.C., one year imprisonment under Section 323/149, I.P.C. and one year imprisonment under Section 147, I.P.C.

(2.) DURING pendency of this appeal, four of the appellants namely, the appellant Durga Prasad, Ram Sewak, Sajivan and Ashok Kumar have died and, therefore, their appeal has abated.

(3.) THE prosecution further claims that the informant Daya Shanker tried to lodge F.I.R. about this crime at police station Swaroop Nagar of district Kanpur which was close by Hallet Hospital but the police refused to entertain his report and directed him to lodge the same at police station Shivali within whose jurisdiction, the crime had been committed. THE F.I.R. of the incident thereafter, was lodged in the night of 2/3.10.1977 at 1.30 a.m. at police station Shivali and was registered as crime No. 250-A/1977 and all the appellants were named in the report. Admittedly, prior to the registration of the report of Daya Shanker, another case was registered as crime No. 250/1977 on the report lodged by the appellant Sajivan Lal scribed by the appellant Arun Kumar against 8 persons including Daya Shanker and his party men Baikunth, village Pradhan Mahavir, Up-Pradhan Shiv Kumar etc. That F.I.R. was registered under Section 302, I.P.C. at 11.30 p.m. on 2.10.1977. Sajivan Lal had alleged that Daya Shanker and others had assaulted him and his party whereupon, he and his companion Durga Prasad had received serious injuries while another companion Manni Lal was killed. THE date and time of the incident alleged by Sajivan Lal was also 2.10.1977 at 7.30 p.m. Since report of Sajivan Lal had already been registered and date and time of both the incidents, i.e., one lodged by Sajivan Lal and the other by the informant of the present case Daya Shanker, was almost the same, the police registered report of Daya Shanker as the crime No. 250-A/1977.