PRITHVI RAJ Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Trivedi, J. The present criminal appeal is directed against the judgment and order dated 18-3-1980 passed by IIIrd Addl. Sessions. Judge, Unnao convicting accused-appellants Prithvi Raj as well as Ashok Kumar under Section 302, I. P. C. and sentencing each of them to imprisonment for life, in connec tion with an incident alleged to he taken place on 24-10-78 at about 6 p. m. in front of the house of Badri situate in village Karia Khera, Police Station Kotwali, Dis trict Unnao.

(2.) IT is said that the accused-appel lants namely: Prilhvi Raj as well as Ashok Kumar committed the murder of Sheo Prasad alias Baba (12 Years ). According to prosecution case the appellants had two other brothers who namely; Ram Raj and Raj Kumar. The murder of Ram Raj had taken place earlier in which Raj Kumar was a witness. In the said case Ram Naresh was one of the accused. The said case was listed on 6-11 -78 for recording evidence of Raj Kumar. On 24-l0-78at about 5 p. m. , it is said that Raj Kumar was also murdered by Mani Ram son of Badri (brother of the deceased) and others near the house of Pancham in village Karia Khera. Prithvi Raj lodged a written report at 6. 30 p. m. regarding the murder of his brother Raj Kumar at P. S. Kotwali, District Unnao. IT is alleged that P. W. 5, S. I. Dwarika Prasad was present at the time of lodging of the report by Prilhvi Raj and therefore he immedi ately proceeded to village Karia Khera and reached there at about 7. 15 p. m. Accord ing to the prosecution case the present incident took place on 24-10-78 at about 6 p. m. just in front of the house of Badri. According to the complainant Badri, he was present in his field in the evening at about 5 p. m. and was doing weeding in radish field. According to him, he heard some sound of firearm and on hearing the sound of fire-arm, he reached his house and found, is wife and others at the door and there after his son Sheo Prasad alias Baba came with calf at the door and tied the calf with the pillar and it was 6 p. m. by that time. At that time both the accused-appellants Prithvi Raj and Ashok Kumar armed with fire-arms reached there and appellant Prilhvi Raj instigated that Mani Ram with his associates had killed his brother, therefore, Mani Ram's brother be also killed. Upon this instigation, appel lant Ashok Kumar fired his Katta causing injuries to Sheo Prasad alias Baba (deceased) and immediately thereafter, appellant Prithvi Raj also fired his Katia killing the deceased on the spot. IT is said that thereafier, both the accused persons ran away. IT is said that just after the inci dent, P. W. 1 Badri got the F. I. R. . Ext. Ka-1 written by Ram Sahai of village Chumana Khera situated at disiance of about two furlongs from the place of the occurrence and lodged the same at 7. 45 p. m. at P. S. Kotwali, Dislrict Unnao. According to the prosecution case after lodging of the report, as the Investigating Officer had already left the police station to village Kharia Khera, therefore, the complainant was also sent, to village Karia Khera alongwiih constable. The complainant reached the village and met 'daroga Ji' who was present near the dead body of Raj Kumar (deceased ). IT is not disputed that appellant Prilhvi Raj was also present near the dead body of his brother. IT is said that thereafter, the case was investigated by same Investigating Officer. He received the papers of this case on 24-10-78 at about 10. 15 p. m. in village Karia Khera and recorded the statement of Badri and prepared the inquest report Ext. Ka-Sand other relevant papers Ext. Ka-9and Ka- 10 and sent the dead-body of Sheo Prasad alias Baba (deceased) to mortuary for autopsy. The Investigating Officer recovered the blood-stained and plain earth from the place of the incident and arrested Prithvi Raj who was admittedly present in the village on 25-10-78. He thereafter, recorded the statements of the other witnesses and thereafter, complet ing the investigation of this case he sub mitted the charge-sheet against the ac cused-persons. The post mortem ex amination of the dead- body of deceased Sheo Prasad alias Baba was conducted by P. W 3 Dr. S. M. Tripathi on 25-10-78 at 3. 20 p. m. The doctor found the following ante-mortem injuries on the dead-body of deceased Sheo Prasad alias Baba: (1) Circular lacerated wound 1-1/4" in diameter on left temporal region x brain cavity deep, blackening and charring present. Wound of entry. (2) Lacerated wound 2-1/2" x 2" on right orbit-right eye is missing. Margin evened. No blackening or charring present. Brain cavity deep wound of exit of injury No. 1. (3) Circular Ulcerated wound 1" in diameter on right side chest 2-1/2" below the right nipple. Margins inverted. Blackening and charring present. (4) Lacerated wound 1-1/2" X 1" on left leg below knee joint. Margins everted through and through. Blackening and charring present. (5) Lacerated wound 3" x 2" on left leg and food upper third. Margins everted. Fracture of both bones of left leg. Wound of exit, of injury No. 4.

(3.) ON the other hand the accused-persons denied the prosecution case and stated that they were arrested by the police due to enmity. Accused Prithvi Raj further stated that he was Panchayat Secretary and at the time of the incident he was posted at Deori Kalan ten kms. away from the inci dent. He reached his house in the evening and found his brother killed, therefore, he immediately rushed to the police station and lodged a report at the police station Kotwali at 6. 30 p. m. and returned back alongwith the Investigating Officer to vil lage Karia Khera, In these circumstances the prosecution story that he was present in 'he village and killed Sheo Prasad alias Baba (deceased) on the face of it, is incor rect.