ACHHABIBAR PANDEY Vs. STATE

JUDGEMENT

(1.) Achhaibar Pandey has filed Criminal Appeal No. 1138 of 1979 against the judgement of the IV Additional Sessions Judge, Deoria dated 29-2-1979 passed in Sessions Trial No. 12 of 1976 convicting him under Ss.302 and 307, I.P.C. and sentencing him to life imprisonment and five year rigorous imprisonment respectively. The State of U.P. has filed Government Appeal No. 2200 of 1979 against the acquittal of Vidhyachal Pandey, Janardan Pandey, Biten Misra, Gulab Misra, Bhardul Misra, Hasani Ram, Komal Prasad, Kashi, Chhatthu, Munesar and Achhaibar Pandey under Ss.302/149/307/149, 148 and 147, I.P.C. by the learned IV Additional Sessions Judge in the aforesaid case.

(2.) Achhaibar Pandey and Janardan Pandey accused are the sons of Vindhyachal Pandey accused. Gulab Misra, Biten Misra and Bhardul Misra accused are the sons of Jagdish Misra, Komal Prasad and Munesar accused are the sons of Sambharu. All the accused are residents of village Beldar Pandit. Prem Chandra Pandey (PW 1) is the son of Prabhu Dayal (PW 2), Ram Dayal deceased was the brother of Prabhu Dayal (PW 2) Achhaibar Pandey, Vindhyachal Pandey and Janardan Pandey accused are the collaterals of Ram Dayal deceased, Prabhu Dayal (PW 2) and Prem Chandra Pandey (PW 1) and lived in different portions of the same house in village Beldar Pandit.

(3.) The case of the prosecution is that on 30-11-1973 Achhaibar Pandey accused forcibly constructed a wall in the court yard of the joint house. Prior to the occurrence one bracelet and one pair of Kangan belonging to Achhaibar Pandey accused were pawned by Prem Chandra Pandey (PW 1) with Jaganath Goldsmith (PW 6) of village Bhatpar for Rs. 625/- at the instance of Achhaibar Pandey accused and the said amount was given by Prem Chandra Pandey (PW 1) to Achhaibar Pandey accused, the document relating to that transaction are Exts. Ka-1 and Ka-2. A suit under S.229-B of U.P. Zamindari Abolition and Land Reforms Act was filed prior to the occurrence against Prabhu Dayal (PW 2) by Vidhyachal Pandey accused. Ram Dayal deceased was also a co-plaintiff of Vindhyachal Pandey accused. That suit was decreed on the basis of a compromise. Thereafter Vidhyachal Pandey accused filed an application for setting aside the decree before the Sub-Divisional Magistrate, Salemput in which it was stated that a fraud has been practised by Prabhu Dayal (PW 2) and Ram Dayal deceased as he had not filed the aforesaid suit. Time was granted to Ram Dayal deceased to file objection and 18-12-1973 was fixed for filing the objection. The objection was, however, field by Prabhu Dayal (PW 2) Prior to the occurrence. The aforesaid proceedings were pending at the time of the occurrence. On 4-12-1973 at about 5.15 p.m. while Prem Chandra Pandey (PW 1), Prabhu Dayal (PW 2) and Ram Dayal deceased were sitting on a cot in the verandah of their house along with Pradhuman Tewari (PW 3) and Ram Chandra Pandey and talking to each other. Achhaibar Pandey accused armed with a gun, Biten Misra accused armed with a pistol and the remaining accused armed with lathis came there and Achhaibar Pandey accused asked Prem Chandra Pandey (PW 1) where the ornaments which had been given for being pawned were. When Prem Chandra Pandey (PW 1) replied that they were with Jagan Nath Goldsmith (PW 6), Achhaibar Pandey accused abused him and told him that he had been informed by Jagan Nath Goldsmith (PW 6) that they had been taken away by him. When Prem Chandra Pandey (PW 1) said that he had not brought them Achhaibar Pandey accused fired at Ram Dayal Pandey deceased with his gun at the instigation of Vindhyachal Pandey accused. The deceased received gun shots injuries and ran towards the verandah of the house. He was thereafter assaulted by Bhardul Misra and Komal Prasad accused with lathis as a result of which he fell down and died on the spot. Achhaibar Pandey accused thereafter fired thrice at Prabhu Dayal (PW 2) as a result of which he also received gun shot injuries. He was also assaulted by Biten Misra accused with lathi. All the accused thereafter ran away.