RAM HARAKH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri R.B. Sahai, learned counsel for the appellant and Sri J. K. Upadhyay, learned A.G.A. for the State.

(2.) This appeal has been preferred by the appellant Ram Harakh against the judgement and order dated 24.09.1986 passed by the learned Additional Sessions Judge, Deoria in S.T. No. 368 of 1980, whereby the appellant has been convicted and sentenced to imprisonment for life under Section 302 of IPC.

(3.) The prosecution story as spelt out in the written report of the incident (Ex.Ka.5) given by the informant PW-1 Bindesari Prasad at Police Station Padrauna, District Deoria on 24.03.1980 at 15:05 hours in respect of an incident which had taken place on 24.03.1980 at about 1:00 PM in which it was alleged that the accused appellant had shot one Nagesar, the real brother of the first informant, in village Vishunpura is that one Mahadev, resident of the same village had brought a lady from Tarayal, who had brought with her one Munni Ahir. A son was born to Mahadev Ahir from that lady who was named Thug. On account of a quarrel having taken place between Mahadev and Munni Ahir, Mahadev had turned out Munni Ahir from his house. After the death of Mahadev, Munni Ahir returned to the house of Mahadev and in collusion with lekhpal got himself recorded as the owner of the agricultural holdings of Mahadev in his place and started planning to return to his village after disposing off his properties at Vishunpura. Munni Ahir entered into an agreement to sell in respect of Mahadev's property with Nagesar (deceased) for a total sale consideration of Rs. 7000/- in the year 1968. It was agreed that he would execute the sale-deed after receiving balance amount Rs. 2,000/-. After the execution of agreement to sale Munni, he had given possession over the agricultural holdings of Mahadev to the brother of the informant Nagesar (deceased), but when he failed to execute the sale-deed, Nagesar (deceased) filed a suit for specific performance of agreement to sale before the civil court which was decreed by the trial court on 16.03.1978. The judgment and decree passed by the trial court was challenged by Munni Ahir by filing a civil appeal before the District Judge which was also dismissed. The second appeal filed by Munni before this Court also met the same fate. Thereafter Nagesar (deceased) filed an application before the Consolidation Officer for mutation of his name, against which Munni filed an objection. On the day of incident, the dispute between Nagesar (deceased) and Munni was pending before the Deputy Director of Consolidation. The deceased Nagesar had sown 'Arhar' in the agricultural holdings which had been transferred in his favour. The 'Arhar' crop, on the date of occurrence, was ready for being cut and in the morning Nagesar (deceased) after reaping his 'Arhar' crop, had kept the same in piles in the farmyard. Out of the 'Arhar' crop kept by him in his farmyard, three piles of 'Arhar' were taken away by Munni Ahir, his son appellant Ram Harakh and their relative Radhey, residents of village Vudvantwapur and Sheetal residents of village Madsar, Police Station Kaptanganj, District Deoria from the farmyard of Nagesar (deceased) and kept the same in front of the door of their house and started thrashing it, on which informant's brother Nagesar (deceased), his servant Narsingh and his step brother Thug, his son Paras and the informant went to the house of Munni Ahir and asked him why he had lifted his 'Arhar' crop, on which Munni, Radhey and Sheetal exhorted appellant Ram Harakh to kill all of them. On their exhortation, appellant Ram Harakh pulled out a country made pistol, on seeing which they started running away. However, Harakh fired two shots from his country made pistol which hit his brother Nagesar who fell on the ground in front of the door of the house of Fateh Mohammad and died instantaneously. The incident was witnessed by Thug, Paras, informant himself and one Narsingh of village Patehra and several other villagers. Munni and another accused ran towards west. They were chased by Narsingh, Paras and Thug etc and with the help of villagers of village Papuar, they had caught Radhey, Munni and Sheetal in Papuar village and made them sit there.