VISHAMBHAR DAYAL Vs. STATE OF U.P.

JUDGEMENT

(1.) By the judgment impugned dated 16.01.1984, learned IVth Additional Sessions Judge, Mainpuri in Sessions Trial No. 69 of 1983 recorded conviction of accused Vishambhar Dayal for commission of an offence punishable under Section 302 Indian Penal Code and sentenced him to undergo life term imprisonment. The other accused Munna S/o Vishambhar Dayal and Pappu S/o Vishambhar Dayal were also held guilty for commission of offence punishable under Section 302 read with Section 34 Indian Penal Code and were also sentenced to undergo imprisonment for life. Being aggrieved by the same, instant appeal is preferred.

(2.) The case of the prosecution is that on 20.11.1982 at about 06:30 A.M., accused Vishambhar Dayal and his sons Munna and Pappu had some heated altercations with Kamta Prasad (deceased). The houses of deceased Kamta Prasad and accused Vishambhar Dayal were located opposite to each other in the same lane. The dispute was with regard to a platform and making of cow dung cakes. Pappu and Munna, at the first instance, entered into heated arguments with daughter of deceased Kamta Prasad and, at that time, Jaimanti W/o Kamta Prasad was also there. The accused-appellants also abused Kamta Prasad. Pappu and Munna entered into a scuffle with Kamta Prasad, who too was present at the site. During the course of scuffle, accused-appellant Vishambhar Dayal brought a licensed 315 bore rifle from his house and loudly shouted with instructions to his sons to get away. He then fired a gun shot on Kamta Prasad which hit at his hip. A first information report of the incident was lodged at Police Station Kotwali Shikohabad, Mainpuri at the instance of deceased Kamta Prasad himself. A case for commission of offence under Section 307 Indian Penal Code was lodged and investigation commenced.

(3.) During the course of investigation, Kamta Prasad died, hence the Police initiated investigation for commission of offence under Section 302 Indian Penal Code. During the course of investigation, inquest was made and a site plan was prepared. The corpus of the deceased Kamta Prasas was subjected to autopsy, report of that is available on record as Exhibit Ka-2. As per the report of post mortem, cause of death was shock and hemorrhage due to ante mortem injuries. The prosecution after completing the investigation filed a report as per provisions of Section 173 Code of Criminal Procedure, 1973 before a competent Court. The Court competent committed the case to the Court of Sessions being sessions triable. Learned Additional Sessions Judge, Mainpuri framed a charge against the accused Vishambhar Dayal for commission of offence under Section 302 Indian Penal Code and against Pappu and Munna for commission of offence under Section 302 read with Section 34 Indian Penal Code. The charges were read over and explained to the accused-appellants in their mother tongue. On being pleaded not guilty, trial commenced as desired.