RAJENDRA GAUR Vs. STATE OF U P

JUDGEMENT

(1.) The appellants Rajendra Gaur, son of Ram Sakal Gaur and Jai Govind son of Kapil Dev Gaur, residents of Khoranpur, Police Station Bhanwar Kol, District Ghazipur, have challenged the validity and correctness of the judgment and order of conviction and sentence dated 7.2.1997 passed by Sri Brijendra Singh, Sessions Judge, Ghazipur, convicting and sentencing the appellants to undergo life imprisonment for the offence punishable under Section 302, I.P.C. read with Section 34, I.P.C. in S. T. No. 49 of 1994 and S. T. No. 186 of 1996, State v. Rajendra Gaur and another, under Section 302, I.P.C. Police Station Bhanwar Kol, District Ghazipur.

(2.) The grounds of challenge to the aforesaid judgment and order are that the order of the trial Court is against the evidence on the record, the presence of the prosecution witnesses, who are interested and partisan persons, at the time of alleged occurrence is highly doubtful but the trial Court has ignored this aspect. It is also challenged on the ground that according to the F.I.R. and the evidence the witnesses have deposed that the victim was first shot at and thereafter done to death by Gandasa and knife. This deposition of the witnesses in cross-examination is challenged on the ground that the prosecution witnesses have clearly stated that after receiving the gunshot wound the victim fell down and blood was profusely oozing from that wound but it is clear form the post mortem report that no gunshot wound was found on the body of the victim. As such the ocular version is inconsistent with the medical evidence. Lastly, the impugned judgment and order is challenged on the ground that the defence version was more probable and trustworthy then the same should have been given weight and consideration by the trial Court and that the impugned judgment and order as passed by the Sessions Court is bad in law and is liable to be set aside in the criminal appeal by this Court apart from the sentence being too severe in the facts and circumstances of the case.

(3.) It appears form the order sheet dated 24.8.1998 that Jai Govind, appellant No. 2, has already been released on bail by this Court vide order dated 5.9.1997. The facts as culled out from the record are that an FIR was lodged by the complainant Virendra Gaur, son of Indradev Gaur, resident of Khoranpur, Police Station Bhanwar Kol, District Ghazipur, inter alia that an ancestral landed property measuring 21 Manda is in the village in which Indradeo, Sakal and Kapildeo Gaur were entitled to land measuring 7 Manda each but the real brother of the complainant i.e. Brijnath Gaur had illegally occupied it and was cultivating the same. Due to this reason the sons of his uncle namely Rajendra son of Sakal nurtured ill will and harvoured enmity. In the report it was averred that on 12.12.1993 at about 5.30 P.M. when Brijnath Gaur was gathering leaves and his mother Surji as well as the wife of Brijnath Gaur namely Saraswati were doing work near pumping set on the land in dispute at that time Rajendra armed with Gandasa and Jai Govind armed with Katta (country made pistol) came from the western side of the cane crop. Jai Govind fired upon Brijnath Gaur with Katta with intent to kill, which injured him and thereafter Brijnath Gaur fell down in the field. At this Rajendra Gaur cut the throat of Brijnath Gaur with Gandasa and Jai Govind stabbed Brijnath Gaur in his chest by a knife, which he had brought with him. On call for help being raised by Smt. Surji and Smt. Saraswati the mother and the wife of the deceased, respectively, both the accused chased them and thereafter ran towards north; that dead body of the deceased Brijnath Gaur, his brother, was lying in the fields. The FIR was lodged on 12.12.1993 at 8.30 P.M. and was registered at Case Crime No. 318 of 1993, under Section 302, I.P.C., which is said to have been taken down word by word by the Head Moharrir on the dictation of the complainant.