GANGA MADHO Vs. STATE OF U P

JUDGEMENT

(1.) B. K. Sharma, J. Ganga Madho and Shiv Lal, accused have preferred these ap peals against their respective convictions for the offences under Sections 302/34, IPC and Section 302, IPC and sentence of life imprisonment awarded to them by Sri V. P. Mathur, the then Sessions Judge, Fathepur in Sessions Trial No. 269 of 1978.

(2.) THE prosecution story was that Ganga Madho and Shiv Lal, present ac cused-appellants, and Kaley alias Dinesh were friendly with each others and were occasionally found in each others com pany, that Ganga Madho accused-appel lant had a betel shop and that Prakash Chandra Gupta, deceased, was occasional ly seen on the Betel shop of Ganga Madho, accused-appellant ; that he (Ganga Madho) was havingsome sort of affair with one Km. Bimla, aged about 12 years, daughter of one Radhey Shyam, Lohar (not to be confused with Radhey Shyam son of Kanhaiya Lal Gupta, the informant in the present case) ; that about twenty days prior to the present occurrence, this Km. Bimla was seen having light talks with the deceased Prakash Chandra Gupta at Hanuman Temple, hence since then the relations between Ganga Madho, accused-appellant and Prakash Chandra Gupta deceased became strained; that about 10- 12 days' before the present occurrence, there was a quarrel between Ganga Madho accused and Prakash Chandra Gupta, deceased, in connection with the payment of dues of betels and in it Prakash Chandra Gupta, deceased, had even given a beating to Ganga Madho, accused-appellant, but on account of intervention by some people, the situation was saved; that Pramod, the brother of deceased, had some quarrel with accused Kaley alias Dinesh and in that connection, proceed ings under Sections 107/116, Cr PC were started by the police against Kaley alias Dinesh; that for that reason, Ganga Madho, accused-appellant and Kaley alias Dinesh, co-accused, were out to kill Prakash Chandra Gupta, deceased, and Shiv Lal, accused-appellant, who was their friend and associate joined them in this planning; that on 21-8-78, Radhey Shyam, informant, Prakash Chandra Gupta, deceased, Harendra alias Badal, Rajendra alias Pappu and Shanker were as usual playing cards on the Nautanki Chabutara in the Kaliji Temple within its precincts in Mohalla Jahanpur, Bindki town; that Pancham (PW-2), Moti and Sawani were sitting on a cot near the Chabutara ; that both the accused-appellants and co-ac cused Kaley alias Dinesh came on the spot; that Ganga Madho, accused-appellant, as armed with a small barrelled country made pistol and Shiv Lal, accused-appellant, with a long barrelled country made pistol while Kaley, co-accused, was empty handed that Kaley alias Dinesh pointed to the deceased and told Shiv Lal, accused-appellant that he was Prakash Chandra Gupta; that on seeing them, the deceased was taken aback and he started to get up but before that could be done both Ganga Madho and Shiv Lal, accused-appellants, placed their Tamancha on his body and Ganga Madho, accused-appellant retorted "saley AAJ BACH KAR NAHIN JANEY PAVOGAY" ; that both the accused-appellants fired with their Amentias ; that the cartridge of Tamancha of Ganga Madho, accused-ap pellant, missed, but the cartridge lured by Shiv Lal, accused-appellant struck the deceased due to which he fell down and profusely bled ; that Shiv Lal, accused-ap pellant, had dropped the empty cartridge of his Tamancha and tried to fill his Tamancha with another cartridge but in the meanwhile the witnesses challenged them, whereupon both the accused-appellants and Kaley alias Dinesh, co accused ran away ; that in the occurrence, the live cartridge which Shiv Lal, accused-appel lant wanted to fill in his Tamcnaha, fell on the ground; that the witnesses chased them, but in vain; that the deceased was injured but was alive and blood was oozing out from his wound so his injury was tied with his Angochha and he was taken to the Government Hospital, Bindki on the THEliya of one Goonga, covering his body with his own Tahmad; that he reached the hospital at 3. 50 p. m. where Dr. Prem Narain Shukla, Medical Officer, instantly declared him dead, that the dead body WPC taken to the Police Station where Raattey Shyam, informant, dictated his FIR to the Clerk Constable at 4. 15 P. M. who prepared chick report and a case was registered against both the present accused-appel lants and one Kaley, co-accused and an entry Ex. Ka-7 was made in the General Diary of the Police Station.

(3.) THE investigation of the case under Section 25 of Arms Act against Shiv Lal, accused-appellant, about the recovery of Tamancha and cartridges from him without license was entrusted to Prahlad Singh, Sub- Inspector. THE sanction was, however, delayed because the articles had been sent to Ballistic expert.