DEVI SARAN Vs. STATE OF U P

JUDGEMENT

(1.) Challenge in this appeal is to the judgment and order of conviction dated 12.4.1984 passed by Special Judge, Dacoity Affected Area, Banda in Sessions Trial No. 130 of 1982 (State of U.P. Vs. Devi Saran and another) under Section 302/34 I.P.C. whereby both the appellants were held guilty and awarded sentence to undergo life imprisonment.

(2.) The prosecution case in nut shell is that a written Tahreer was given by Devi Sahay Dikshit PW-1 at Police Station Sumerpur, District- Hamirpur on 23.06.1980 alleging that he along with his son Santosh, Ramakant son of Sant Vilas, Dhunni son of Jaggannath Tiwari, and Mahavir son of Babu Mali had gone to Mumuchha Ashram for Parikarama at about 6.00 p.m. they were returning therefrom and at about 6.15 p.m. as soon as they reached near the Khalihan of Shivram Kachhi then Devi Saran son of Ram Dayal and his nephew (brother's-son) Raja Bhaiya, who were hiding behind the trees came suddenly. Devi Saran was having his licensee double barrel gun and Raja Bhaiya was having licensee single barrel gun of his father. On exhortation of Devi Saran by saying to kill, Raja Bhaiya opened fire on his son Santosh which hit him and he succumbed on the spot due to injuries sustained; that on their hue and cry Ishwar Deen son of Dahsrath Dhobi and Ram Kishan son of Bhairam Dhobi of that village also came on the spot and watched the incident. Thereafter the accused persons fled away towards village Bidokhar. It was also asserted that he was having dispute with the father of Raja Bhaiya in respect of landed property and as such there was enmity between them. It was also stated that on the day of incident accused persons had parked their tractor and trolley at the door of first informant on which his son Santosh had asked them to keep it away and abused the accused person and due to this enmity accused persons have committed murder of his son Santosh. He also stated that there was apprehension that dead body of the deceased might be taken away by accused persons, so he having the dead body on a jeep came to the police station. On his application an FIR was registered against accused persons at 8.05 p.m. under Section 302 IPC bearing case crime no. 171/1980 and necessary entries were made in the concerning G.D. The investigation was taken over by Karuna Shankar Shukla, S.I. He conducted Panchayatnama of the dead body on the same day and necessary papers such as photonash, challannash, chitthi majrubi, were prepared. The dead body was having blood and a Safi was found at the stomach. The dead body was sealed and thereafter sent for postmortem through constable Shivdeen P.W.5 and Chaukidar Rajwa. At 11.30 he reached on the spot. Special report was also sent through constable Ram Pal. On 24.06.1980 the I.O. took blood stained and simple mud from the spot. He also found two pellets and two tikli and fard was prepared. One pair sandle of deceased were also found on the spot which was also taken by the I.O. and fard was prepared. After postmortem Shirt, pant, underwear, Safi, one pair sandle, blood stain mud taken from the spot were sent for chemical examination where on item no. 1 and 4-6 human blood of group B was found. Further, on item nos. 2 and 3 viz. sandle and mud the blood was found disintegrated. The I.O. also made inspection of the place of occurrence and prepared site plan -Exh. Ka -13. After transfer of Karuna Shankar Shukla, I.O. the investigation was entrusted to Asha Ram Tripathi P.W.6. He after concluding investigation submitted charge-sheet. Concerning Magistrate committed the case to the court of Sessions. Ultimately, it was transferred to Special Judge Dacoity Affected Area, Hamirpur where charge under Section 302 I.P.C. was framed against the accused Raja Bhaiya, whereas charges under Section 302/34 I.P.C. were framed against accused Devi Saran. Both the accused persons pleaded not guilty and claimed to be tried.

(3.) To substantiate the charges against the accused persons as many as eight witnesses were examined on behalf of the prosecution.