ANIL KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) The present appeal under Section 374(2) Criminal Procedure Code, 1973 (hereinafter referred to as (Cr.P.C.) arises out of judgment and order dated 17th March, 1982 passed by the VI Additional Sessions Judge, Hardoi in Sessions Trial No. 588 of 1981, under Sections 307 and 307/34 I.P.C. and 27 Arms Act, Police Station Kotwali Hardoi, District Hardoi. Vide impugned judgment and order the learned trial Court while convicting the accused-appellant had sentenced him to undergo three years rigorous imprisonment under Section 307 I.P.C. and two years rigorous imprisonment under Section 27 Arms Act. It was further directed that both the sentences would run concurrently.

(2.) As per prosecution case, sister of the complainant was married to accused-appellant, Anil Kumar, in the year 1976. Accused-appellant had deserted her after three years of marriage and had remarried at Shahjahanpur. The complainant and his family members had resented the remarriage of the accused-appellant. Due to this, father of the accused-appellant, Narendra Narain, had lodged a false report against the complainant and his family members and had also moved 2-3 complaints against them. Thereafter, father of the accused-appellant, Narendra Narain and others had once surrounded the complainant-side with a view to assault them, but the police had arrived at that time and both the parties were arrested and challaned under Section 151 Cr.P.C.

(3.) Further case of the prosecution is that a case under Section 151/107/116 Cr.P.C. was pending in this regard in the Court of S.D.M., Sadar, Hardoi. In the said case, 30th June, 1979 was the date fixed. Narendra Narain and his son, accused-appellant, became annoyed because of this incident. The sister of the complainant, Smt. Munni Devi, had filed a case for maintenance against the accused-appellant. This had further annoyed the accused-appellant and his father, Narendra Narain. It was further alleged that the accused-appellant and his father were in lookout of an opportunity to kill the complainant Nand Kishore and his family members. On 30.06.1979, complainant, Nand Kishore, along with his father Chhotey Lal, brother Jugul Kishore and witnesses Sukaru and Sunder Lal had gone to the Court to attend the date. After the case was adjourned, the complainant-side had proceeded for their houses back. Around 1:30 p.m., when they reached on the turning, in front of the Post Office, near a Jamun tree, accused-appellant, Anil Kumar holding gun of his father had arrived there along with his father, Narendra Narain. Father of accused-appellant, Narendra Narain Mishra, who was a practicing Lawyer, had exhorted his son Anil Kumar, accused-appellant to shoot the complainant and had exclaimed that he had already prepared the defence. On assurance being given by his father, the accused-appellant had fired two shots in quick succession by the gun of his father aiming at the complainant Nand Kishore with an intention to kill him, but the complainant sat down at once and fires did not hit the target. In the meantime, one Sub-Inspector and few constables had reached there and snatched the gun from the accused Anil Kumar and unloaded the same. The gun was taken into custody by the police along with two empty and two live cartridges from the accused-appellant and arrested him and his father. The police took both the accused and the complainant to the police station Kotwali where the complainant had moved a written report (Exhibit Ka-1). On the basis of the written report, Chik F.I.R. (Exhibit Ka-3) was scribed at the police station by Head Moharrir Indrajeet Singh.