RAJ BAHADUR Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a crimi ­nal appeal filed on behalf of the accused appellants from judgment and order dated 20th of September, 1982 passed by Sessions Judge, Fatehpur in Sessions Trial No. 372 of 1981 State v. Raj Bahadur and others convict ­ing accused Raj Bahadur and Manni Lal under section 148 IPC and accused Jagdish, Jagroop, Sahdeo and Ram Vishambhar un ­der section 147 IPC and sentencing Manni Lal and Raj Bahadur to three years rigorous imprisonment and Jagdeo, Jagroop, Sahdeo and Ram Vishambhar to two years' rigor ­ous imprisonment respectively thereunder. Accused Raj Bahadur was further con ­victed under section 302 read with section 301 IPC and accused Manni Lal, Jagdeo, Jagroop, Sahdeo and Ram Vishambnar un ­der section 302 read with section 149 IPC and each of them sentenced to imprison ­ment for life thereunder. Accused Raj Ba ­hadur and Manni Lal were also convicted under section 307 IPC and accused Jagdeo, Jagroop, Sahdeo and Ram Vishambhar un ­der section 307 read with section 149 IPC and each of them sentenced to five years' rigorous imprisonment respectively there ­under. All the accused were also convicted under section 323 read with section 149 IPC and each of them sentenced to six months' rigorous imprisonment thereunder. All the sentences were made to run concurrently.

(2.) PROSECUTION case as unfolded during the trial in brief is Rameshwar and Bhagwat Prasad are real brothers and Ram Sanehi. Ram Khilavan and Girja Shanker are sons of Rameshwar. Sarju and Mahendra are sons of Ram Khilavan and Gaytri Devi and Sheela Devi his daughters. Ac ­cused Ram Vishambhar and Raj Bahadur are cousins, and Manni Lal Jagdeo, Jagroop and Sahdeo are the sons of Ram Vishambhar. Since the houses of Rameshwar and Ram Vishambhar were situate adjacently quarrel often took place between them over nali. On 20th of March, 1981 it was the fes ­tival of Holi. That day at about 10:00 p.m. after Holi Dahan procession of the villagers proceeded from that place singing phag and as they reached in front of the house of Raj Bahadur, Raj Bahadur started hurling abuses to Sarju and as Sarju abused him in turn Raj Bahadur showing him country -made pistol shouted that he would kill him. Immediately Sarju ran away to his house. At that time Rameshwar with his brother Bhagwat Prasad and sons Ram Sanehi, Ram Khilavan and Girja Shanker were sitting there. As Sarju was telling to his family members about the said incident Raj Bahadur and Manni Lal armed with coutnrymade pistols and Ram Vishambhar, Jagdeo, Jagroop and Sahdeo with lathis reached in front of the house of Rameshwar shouting that they were their old enemies and should be killed so that every day dis ­pute may come to an end, and the accused armed with lathis gave lathi blows to them. Ram Sanehi also hurled lathi in self -defence but in the meanwhile Manni Lal fired at Ram Sanehi with countrymade pistol hitting him at his head and sustain ­ing the firearm injuries he fell down. Im ­mediately Raj Bahadur fired at Sarju with countrymade pistol but missed the target and that shot hit Sheela standing at the chabutara causing injuries at her arm. Raj Bahadur again fired at Sarju but that shot hit Gayiri Devi standing at the chabutara and sustaining the firearm injuries she fell down and died on the spot instantane ­ously. On the hue and cry raised by family members of Gaytri Devi all the accused entered the house of Ram Vishambhar. The incident took place at about 10:30 p.m. Af ­ter a little while a shot as fired inside the house of Ram Vishambhar and then Manni Lal and Raj Bahadur raising shouts went towards north. It was a moonlit night (Pocranmashi). The injured and the wit ­nesses saw the incident in the light of burning lantern hanging at the door of Rameshwar's house and moonlight and recognized the assailants well. After mak ­ing arrangement for a bullock cart injured Girja Shanker taking Ram Sanehi whose condition was precarious went to Jahanabad. Bhagwat Prasad went to police sta ­tion Jafarganj situate at a distance of some eight miles from village Kakora and handed over written report of the occur ­rence to the police there at 4:30 a.m. the same night.

(3.) MEDICAL examination of injured Ram Sanehi by Dr. G.S. Gaur, Medical Of ­ficer District Hospital at 7:00 p.m. revealed below noted injures on his person: