GAYA PRASAD Vs. STATE

JUDGEMENT

(1.) RAJESHWAR Singh, J. The Sessions Court convicted five persons under Sec tion 302, I. P. C. read with Section 149, I. P. C. for the murder of Ram Das and it also convicted them under the same sections for the murder of Mool Chandra. In respect of each of these convictions they were sentenced to undergo imprison ment for life Two of them, namely, Uma hanker and Shitla Prasad were fur ther convicted under Section 147,i. P. C. and were awarded 1 years' rigorous impri sonment. The remaining three Gaya Prasad, Kripa Snankar and Shyam Lal were convicted under Section 148, I. P. C. and they were ordered to undergo 3 years' rigorous imprisonment. Further accused Uma Shanker was convicted under Section 379, I. P. C. and he was sentenced to 3 year's rigorous imprisonment. All these sentences were made to run concurrently. All these five persons have filed this appeal.

(2.) THE murdered persons Ram Das and Mool Chandra were brothers and they were residents of village Budh-Bazar. THE appellants are Qaya Prasad father and his four Sons Kripa Shanker, Uma Shankar, Shitla Prasad and Shyam Lal. THEy are residents of nearby village Manglipur. THE offence is said to have been committed in the background of previous enmity. THEre had been an election for the Pradhanship of the village. THEre was contest between one Jaggu Kisaan and appellant Gaya Prasad the sitting Podhari. THE deceased Moal Chandra supported Jaggu Kishan, who woo the election. Since then appellant Gaya Prasad and his family members were harbouring ill will against the deceased Mool Chandra and his family members. J. I. c 3 THEn (here was immediate motive for the occurrence. THE deceased had their cultivation within the area of village Mangalipur and those fields were irrigated from a Government Tube-well. Appellant Gaya Prasad had been irrigating his filed for several days. Deceased Ram Das also wanted to irrigate his fields. In connection with this problem of irrigation and altercation took place between the deceased Ram Das and appellant Gaya Prasad one day in the evening. On the next day, that is 23rd January, 1977 complainant Vidya Sagar (P. W. 1) brother of the deceased, deceased Mool Chandra, deceased Ram Das and Mool Chandra's son Arvind (P. W. 6.) went for irrigation to the Government Tube well. Electricity was not available at that time. So these people were waiting for the electricity. At that time Laiq Husain (P. W. 2) resident of another village also came these as he had also some fields there and wanted to irrigate the same. He had gun with him. After a short while at about 11. 00 a. m. the five appellants came there. Appellent Gaya Prasad the father and his to sons appellant Kripa Shanker and Shyam Lal were armed with guns. THE other two sons of appellant Gaya Prasad namely, appellant Uma Shanker and Shit la Prasad had lathis. Appellant Gaya Prasad said that till his fields have been irrigated none else would be allowed to irrigate. THE deceased Ram Das replied that appellant Gaya Prasad had been irrigating his fields for several days and on that day the deceased would irrigate his filed. This resulted in Iou1 altercation, on hearing which some other persons also came at the spot. THEn Appellant Gaya Prasad exhorted his four sons that deceased Mool Chandra hid been harassing him since the last election and he (the appellant Gaya Prasad) had brought up the other appellants for this very day and they should kill Mool Chandra and Ram Das. THEn appellants Kripa Shanker and Shyam Lal find their guns at Ram Das who fell down and died. THEn the persons on the sue of deceased including the complainant started running assay to save themselves In this confusion, Laiq Hussam (P. W. 2) fell down in a 'nali 'and his gun fell on the ground. It was taken away by Uma Shankar and it is in this respect that there was a charge against him under Section 379, I. P. C. Mool Chandra went rum in towards east and the appellants chased him. After a short distance. Uma Shanker threw his lathi aiming it at Mool Chandra. This struck his legs and he could not run. THEn appellant Shitla Prasad gave two or three lathi blows and appellants. Gaya Prasad, Kripa Shanker and Shyam Lal fired at Mool Chandra. On receividg injuries from lathi and guns Mool Chandra fell down in a 'khanti' and died. THEn the appellants made good their escape along-with the gun of Laiq Hussain (P. W. 2 ). After leaving the dead bodies to be looked after by Chaukidar and other family member, Vidya Sagar (P. W. 1) handed over a written report at the police station 3 miles away at 1. 05 p. m. 4. Dr. Yaspal (P. W. 3) conducted post-mortem examination on the dead body of Ram Das at 11. 30 a. m. on 24-1-77. He found following ante-mortem injuries on the dead body of Ram Das :- 1. Firearm wound of entry 14 cm X 6 cm X cranial cavity deep, extending from the middle of the left side of the scalp, 50 cm above the root of the left ear and running transversely to the other side of the Scalp. THE margins of the wound were lacerted. No scorching or blackening was present. 2. All the bones of the scalp (both temporal, both parietal, frontal and occiptional bones) were broken into many pieces. Brain matter was coming out of the gapping wound. One wadding piece was recovered from the surface of the brain and 30 small state were recovered from the brain matter and sticking to skull bone. 5. THE age of the deceased was 36 years and one day had passed after his death, la the stomach 8 Oz. Semi digested food was found. THE small in testines were filled only with gas and in the large intestines there was gas and faecal matter. THE cause of death was shook and hemorrhage as a result of ante mortem injuries. 30 small pellets and wads were removed from the wound. 6. THE same Doctor conducted postmortem examination on the dead body of Mool Chandra at 1 O'clock on the same day. According to him the age of the deceased was 40 years and his death occurred about a day before. Following ante mortem injuries were noticed on his dead body :- 1. Lacerated wound 6 cm x0. 5 cm x bone deep on the top of the scalp 14. 5 cm from the route of the right ear. 2. Lacerated wound 2 cm, X 0. 2 cm x muscle deep on the top of the scalp 8 cm, to the left of injury No. 1 and 12 cm. above the root of the left ear,

(3.) INCISED wound 2 cm. x 1 cm. x muscle deep on the right half of the neck just below the middle of right mandible.