IMPORTANT POINT
Murder – When there is ample unimpeachable ocular evidence and same has been corroborated by medical evidence, non-recovery of weapon does not affect persecution case.

JUDGMENT

Shiv Shanker Prasad, J.—Both the Criminal as well as Government Appeals are directed against the impugned judgment dated 21st January, 1981 passed by the II Additional District & Sessions Judge, Gorakhpur in Sessions Trial No. 205 of 1980 (State Vs. Ayodhya & 6 Others), arising out of Case Crime No. 36 of 1978, under Sections 147/148/149/302 I.P.C., Police Station-Ghughuli, District- Gorakhpur, whereby accused-appellants Ayodhya, Sanhu, Chhangur, Lakhan and Ram Ji, have been convicted for offence under Section 147 I.P.C. and Section 302 read with Section 149 I.P.C. and have been sentenced to two years rigorous imprisonment for commission of offence under Section 147 and life imprisonment for commissioning of offence under Section 302 read with Section 149 I.P.C., with an observation that both the sentences were to run concurrently, whereas the accused- Pyare and Chhotkoo have been acquitted for all charges alleged against them.

2. Since the basic facts, issues and the judgment of the trial court are similar and common, both criminal appeals have been clubbed and heard together and the same are being decided by this common judgment.

3. We have heard Mr. J.P. Tripathi, learned A.G.A. for the State, Shri P.K. Singh and Mr. Gyan Prakash Singh, learned counsel for accused-respondents in Government Appeal and Mr. Rajeev Chaddha and Arunesh Kumar Singh, learned counsel for accusedappellants in criminal appeal as well as perused the entire material available on record.

4. The present case proceeds on a written report of the informant/P.W.-1 Naik (Exhibit-ka-1) dated 23rd September, 1978, wherein it has been stated that he was resident of village Nebuiya Tola Dusadhi Bari. Sister of accused Ayodhya, namely, Sitabi having a bad character was resident of same village. There was rumour/discussion about illicit relationship of Sitabi with informant’s son i.e. deceased Ganga and other villagers, namely, Pyare Singh and Chhotku Baba etc. Sister of accused Ayodhya, namely, Sitabi fled away somewhere three-four days ago. The accused Ayodhya and others suspected that the deceased enticed away Sitabi. Due to the said grudge, on the night of 22nd September, 1978 at around 9 p.m, the accused Ayodhya and his associates, namely, Pyare Singh, Chhotku, Ramjeet, Lakhan, Sanhu and Chhangur having consensus opinion and having been armed with lathi (sticks) and spears came at the doorstep of the informant and started asking him as to where his son Ganga was, on which the informant replied that his son went to the place of his relative at Pipara. Just in the meantime when the conversation between the informant/P.W.-1 and accused Ayodhya was being exchanged, his son Ganga came with his relative, namely, Mahajan resident of Sakin Pipra, Police Station Shyam Deukha and suddenly the accused persons pounced on his son and started beating him and dragging him towards accused Ayodhya’s house. On this, the informant, his wife Jaleba and his relative Mahajan also followed and reached at the doorstep of the accused Ayodhya for saving Ganga. At the doorstep of accused Ayodhya, all the accused persons started beating Ganga mercilessly by sticks (lathi) and spears, due to which deceased Ganga sustained injuries and fell down. On the alarm being raised by the informant, so many persons of the village including Kanhai and Sita Ram also arrived flashing their torches. The accused Ayodhya and the accused Pyare had pressed the throat of Ganga and the other accused persons wielded sticks (lathis) and spears at him. The son of the informant Ganga died instantly there. With the help of witnesses, the accused Ayodhya was caught on the spot, whereas the other accused persons succeeded in running away. The dead body of his son Ganga was lying at the doorstep of accused Ayodhya throughout the night.

5. The next morning, first informant Naik went to the police station Ghughuli, which was at a distance of about 7 miles from his village and lodged first information report on