HARI SHANKER Vs. STATE

JUDGEMENT

(1.) D. S. Bajpai, J. Appellant, Hari Shanker has come up in appeal (Criminal Appeal No. 639 of 1982) against the judgment and order dated 11-8-1982 passed by the First Additional Sessions Judge, Gonda, convicting him under Section 302, I PC as also under Sections 394/397, IPC while appellant Ramanandey has filed his appeal (Criminal Appeal No. 177 of 1983) against the very said judg ment and order by which he has been found guilty under Stction 394, IPC and convicted for the same. Appellant, Hari Shanker has been awarded life imprisonment under Section 302, IPC and 7 years R. I. under Section 394, IPC. Both the sentences were to run concurrently. Appellant Ramanandey has been sentenc-d to 5 ysars' R. I. under Section 394, IPC. He has, however, been acquitted of the charges under Sections 302/34, IPC.

(2.) THE occurrence is said to have taken place in village Pasiyan Purwa, hamlet of Marghubpur within the Police Station Umbribegumgaj, tahsil Tarab-ganj in the district of Gonda at the house of PW 1 Jagannath which is situated towards the east in the abadi hamlet comprising of about 18 houses. THE house did not contain any doors at the time of the occurrence. Jagannath had his ghari towards north of his house at a distance of 6-7 paces. Jagannath besides being a very small land-holder, had a petty shop selling grocery etc. THE house of appellant, Hari Shanker is said to be at a distance of 150-175 yards from the house of Jagannath. In the night between 31st December, 1978 and 1st January, 1979 Ram Asrey, father of Jagannath, is said to have been sleeping in his ghari, while Jagannath was asleep in the tarwaha. A small kerosene dhibri was burning in the tarwaha. Jaganneth's mother, Smt. Durga Devi and his sister, Smt. Surajpata, were said to be sleeping in the Kothari which stands towards west of the Angan and in that Kothari a dhibri was to have been burning. Jagannath's own wife was sleeping in a southern Kothari. At about midmight, Jagannath is said to have been awakened by the shouts of his mother, Smt. Durga Devi and on entering the house he found four hoodlums removing the ornaments from the persons of his mother and sister and he identified amongst these hoodlums Hari Shanker and Ramanandey. Hari Shanker was carrying a katta and Ramanandey a lathi. THE other two mis creants carried towards. It is said that on the alarm raised by Jagannath and the members of his family several persons collected at the place of occurrence. Amcngt them were Punai, Jaipatter, Jang Bahadur, etc. Punai and Jaipatter were flashing torches. On this the miscreants came out of the house and they were surrounded by Jagannath and Jang Bahadur etc. Whereupon Hari Shanker fired upon Ram Asrey, father of Jagannath, from the katta and Ram Asrey fell dead there instantaneously. It is said that Ramanandey gave a lathi blow to Jagannath whereafter they ran away with the booty. It is further said that before Jagannath could proceed to lodge the F. I. R. appellant Hari Shanker reached the house of the deceased and made an inquiry as to whom Jagannath would name in the F. I. R. whereupan Jagannath gave a spear blow to Hari Shanker. F. I. R. was lodged at police station Umribegumgani, which is 10 kms. from the village, on 1- 1-1979 at 8 a. m. by informant Jagannath (PW 1) and the Investigating Officer, Bharat Singh, immediately thereafter proceeded for the site of occurrence and reached there at about 10 a. m. THE body of deceased, Ram Asrey was sent for post-mortem examination after preparing inquest report. Dr. S. K. Srivastaua (PW 5) conducted the post mortem examination after preparing inquest report. Dr. S. K. Srivastava (PW 5) conducted the post-mortem examination on 2-1-1979 at District Hospital Goda at 1. 30 p. m. and noted a lacerated wound (gun-shot wound) 8. 5 cms. X 6. 5 cms X bone deep over front side of rigut thigh, 23 cms. above knee, margins ragged and inverted. Blackening and tattooing was present. Under lying bone was ruptured completely. Femmoral artery and veins were ruptured at three places. 53 small round pellets and 30 pellets were recovered from the injury and 20 flat pllets were recovered from bone 33 under the said injury. THE cause of death was indicated by the Medical Officer to be due to shock and haemorrhage due to the said injury. THE injury, as deposed by him, was sufficient in the ordinary course of nature to cause death.

(3.) BESIDES examining Jagannath (PW 1), Punnai (PW 2) and Surajpatra (PW 3) as eye-witnesses, the persecution also examined Medical Officer, Dr. S. K. Srivastava, (PW 5) who performed the post-mortem examination Dr. P. K. Saxena (PW 6) the Jail Doctor, who examined appellant Hari Shanker at 1. 15 p. m. on 2-1-1979 and found one stab wound 3 cms. X 0. 5 cm. X muscle deep on the right upper hip which he stated to have been caused by some blunt weapon and appeared to be one and a half days' old at the time of the examination, Dr. Ram Mohan (PW 7) who examined the injuries of Jagannath (PW 1) and the I. O. , Bharat Singh (PW 8 ).