Rakesh Tiwari, J.:-

In S.T. 344 of 1982, three accused persons namely, Jai Prakash, Amar Nath and Chandra Bhushan were tried for the offence punishable under Section 302 /34 IPC. By the impugned judgment and order dated 11.10.1983, Special Judge, Varanasi while convicting accused Jai Prakash and Amar Nath, has acquitted Chandra Bhushan. Aggrieved by the acquittal of Chandra Bhushan, State of U.P. has filed the present Government appeal while complainant of the case has filed Criminal Revision no. 80 of 1984. Since both the appeal and the revision arise out of the same judgment and order, they have been heard together and are being disposed of by this common judgment.

2. Sri Arvind Kumar, Advocate practicing on criminal side for last about 10 years has been appointed as Amicus curiae to represent the case of respondent-accused as none of the Advocates of his choice appointed by him have put in appearance to pursue the case on his behalf.

3. We have heard Sri S.N. Tripathi, learned AGA for the appellant-state in government appeal, Sri C.S. Singh, learned counsel for the revisionist-applicant in criminal revision, Sri Arvind Kumar, Amicus curiae, representing the case of respondent-accused Chandra Bhushan and perused the record.

4. The facts, in brief, as culled out from the record are that first informant Markandey Tiwari son of Rampati Tiwari resident of village Kharwan P.S. Badagaon District Meerut submitted a written report at police station Badagaon on 11.6.82 at about 6.15 P.M., inter alia, stating that on 29.10.80 accused Amar Nath, his brother Awadhesh, his cousin Sheonath and his Pattidar Mewa assaulted him, his father Rampat and also his son Rajbali. A report in this regard under Sections 325,504 and 506 IPC was lodged at police station against Amarnath who is facing his trial.

5. It is averred in the FIR that in front of 'Osara of the first informant there is a well; that on 11.6.1982 at about 11.30 A.M. when the first informant along with Mool Chand Tiwari, Deonarain and one Ram Alam were sitting in his 'Osara, and his son Virendra alias Bullu was taking bath at the well, accused Amar Nath and Jai Prakash each armed with 'Katta' and Chandra Bhushan along with an unknown person, armed with 'Gandasa' came from south giving exhortation to kill Virendra, Jai Prakash and Amar Nath fired with their country made pistols upon Virendra who fell down near the 'Dalan' of Ram Adhar. This incident was seen by Mool Chand son of Raja Ram, Deonarain son of Mannan, Ram Alam son of Bachcha, mother and wife of Virendra and many persons of the village. Thereafter, all the three accused along with their associates firing in the air left the place of occurrence. Virendra was smarting. The first informant arranged a taxi of one Bankey Lal for carrying his injured son Virendra to Shiv Prasad Gupta Hospital, Varanasi but before the injured could reach the hospital he on the way succumbed to the injuries.

6. On the basis of written report the check report was scribed by Head constable Lala Ram Sachan. After making G.D. entry FIR was registered at case crime no. 78/1982, under Sections 302 IPC against accused persons Amar Nath, Jai Prakash, Chandra Bhushan and one unknown person on 11.6.82 at about 11.30 A.M.

7. S.I. Satya Narain Tiwari prepared the inquest report ( Ex.Ka-2) of deceased Virendra in presence of first informant and Mool Chand. He also written a letter ( Ex.Ka-4) to the C.M.O. along with police form no.13 ( Ex.Ka-5), photo lash ( Ex.Ka-6) and challan lash ( Ex.Ka-7) and handed over the dead body in a sealed wrapper for post mortem examination to constables Prem Chand Bharti and Ramji Thakur.

8. S.I. Ram Sundar Nishad recorded the statements of the statements and prepared site plan ( Ex.Ka-18) of the place of occurrence. He collected the blood stained and simple earth from the place of occurrence and prepared the recovery memo ( Ex.Ka-19).

9. Dr. C.B. Tripathi, ( PW-3) lecturer, Department of Forensic Medicine, Institute of Medical Sciences

Click Here to Read the rest of this document