RAMESH & OTHERS Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been jointly filed by the appellant No. 1, Ramesh, appellant No. 2, Jagdish (since dead) and appellant No. 3, Shiv Shankar, against the judgment of conviction dated 22.08.1996 and order of sentence dated 23.08.1996 passed by IIIrd Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No. 483 of 1992, whereby and whereunder appellant No. 1 had been convicted under Sections 307 & 323/34 of the I.P.C. whereas, appellant No. 2 convicted under Section 323 & 307/34 of the I.P.C. and appellant No. 3 convicted under Section 323/34 & 307/34 of the I.P.C. It appears that thereafter appellant No. 1 was sentenced to undergo rigorous imprisonment for seven years and directed to pay fine of Rs. 3000/- for the offence under Section 307 of the I.P.C. and on default he was directed to undergo rigorous imprisonment for six months. It further appears that appellant No. 1 was sentenced to undergo rigorous imprisonment for one month for the offence under Section 323/34 of the I.P.C. It then appears that appellant No. 3, Shiv Shankar was sentenced to undergo rigorous imprisonment for three months under Section 323 of the I.P.C. and he was sentenced to undergo rigorous imprisonment for three years for the offence under Section 307/34 of the I.P.C. and directed to pay fine of Rs.1000/- and on default he was directed to undergo rigorous imprisonment for two months. Appellant No. 2, Jagdish was sentenced to undergo rigorous imprisonment for three years for the offence under section 307/34 of the I.P.C. and directed to pay fine of Rs. 1000/- and on default was directed to undergo rigorous imprisonment for two months. He was further sentenced to undergo rigorous imprisonment for one month for the offence under Section 323/34 of the I.P.C.

(2.) The case of the prosecution inshort is that in the night of 25.06.1992 in between 12:00 to 1 o'clock, the informant (PW-1) his brother, namely, Khushiram (PW-2) and his mother, Laxmi (PW-3) were sleeping in the Aangan on different cots. At that time appellants alongwith one unknown person entered in the Aangan of informant. Appellant No. 1 was armed with gun, whereas, appellant Nos. 2 & 3 were armed with Lathi. It is alleged that appellant No. 3, Shiv Shankar and unknown person caught hold informant's brother, namely, Khushiram and then appellant No. 1, Ramesh fired on him, due to that Khushiram received injuries on his left abdomen and fell down. It is then alleged that Khushiram caught hold Ramesh, thereafter, appellant No. 3, Shiv Shankar twice assaulted him with lathi which caused injuries on his head and left thigh. It is alleged that when informant's mother came in rescue of Khushiram, she was also assaulted by legs and fists and her neck was also pressed. It is also alleged that thereafter accused persons fled away after giving threatening to the informant.

(3.) On the basis of aforesaid allegation police registered a First Information Report vide case crime No. 89 of 1992 under Section 307 of the I.P.C. and took up investigation. It appears that after investigation chargesheet submitted against the appellants under Sections 323, 307/34 of the I.P.C.. It appears that the cognizance was taken and ultimately case committed to the court of sessions as the offence under section 307 of the I.P.C. is exclusively triable by a court of session. It appears that that the learned sessions judge framed charges against the appellants under Section 307/34 of the I.P.C. and also under Section 323/34 of the I.P.C.. Appellant- Ramesh was also charged exclusively under Section 307 of the I.P.C., whereas, appellant No. 3, Shiv Shankar was also exclusively charged under Section 323 of the I.P.C. Thereafter, the above charges read over and explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried. Then the prosecution examined altogether five witnesses in support of its case. After close of the case of prosecution, appellants were examined under Section 313 of the Cr.P.C., in which their defence is of total denial and false implication due to previous enmity. Thereafter, by the impugned judgment the appellants were convicted and sentenced, as stated above, against that the present appeal filed.