MADAN Vs. STATE OF U P

JUDGEMENT

(1.) The present criminal appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 9.2.1998 passed in Session Trial No.628 of 1994 by Shri R.S. Pandey, Ist Additional Sessions Judge, Unnao acquitting the accused Ram Bilas, Kamlesh and Surya Narain. The other five accused-appellants were convicted and sentenced under Sections 302/149 of Indian Penal Code (hereinafter referred to as 'IPC') to life imprisonment and fine of Rs.2000/- and in default to pay the fine, six months of rigorous imprisonment was imposed and under Section 148 IPC the appellants were convicted to undergo one year rigorous imprisonment.

(2.) In short, the prosecution story as per the written report is that P.W.1 Chunnu Pandey, while he was returning with his Uncle Swami Dayal (deceased/victim) from Achalgunj Block after attending the meeting of Block Development Committee to village Nibayi on bicycles then around 6 p.m. within the boundaries of village Singaha near Munnu Singh's tubewell, Madan son of Ram Bilas and Dinesh Son of Shiv Dutt having Kantas in their hands, Ram Vilas Son of Daya Shanker armed with Katta and Shiv Dutt, Son of Daya Shanker armed with Tabbal appeared from behind the shrubs and exhorted to kill them. P.W.1 and Swami Dayal (deceased) left their bicycles and ran towards the village raising alarms. However, in the passage, Deshraj, son of Prahlad Singh having kanta, Shiv Prakash, Son of Kishnu armed with Kanta, Kamlesh son of Daya Shanker with Katta and Surya Narain son of Daya Shanker armed with Katta appeared from behind the tractor, which was standing in the passage and surrounded them, the accused persons with the intention to kill fired at them and chased his Uncle. In the field of Ramesh Yadav, Madan gave a blow to Swami Dayal with Kanta, Dinesh and Shiv Dutt also started hitting his Uncle with Kanta and tabbal as a result thereof, he fell down and P.W.1 somehow saved his skin and ran towards the village while raising alarm. Thereafter, Munnu, son of Ganga Shanker and Dhunni, Barjor and other villagers came, then the accused persons left the place and ran away. It has also been alleged that the accused Deshraj has also sustained injuries. There is a mention in the report that nephew of P.W.1 abducted the daughter of accused Ram Vilas in the year 1986 and there is enmity relating to village Pradhan election. Lastly, it has been said that the dead body of the deceased Uncle of P.W.1 namely Swami Dayal was lying in the field of Ramesh Yadav.

(3.) Out of eight, five accused persons have filed this appeal namely Madan-appellant No.1, Dinesh- appellant no.2, Shiv Dutt-appellant No.3, Shiv Prakash-appellant 4 and Deshraj-appellant no. 5. Madan Son of Ram Vilas has been assigned the role of Kanta in his hand, Dinesh Son of Shiv Dutt again Kanta, Shiv Dutt was armed with kanta and Deshraj, son of Prahlad Singh has been assigned the role of Katta.