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IN THE HIGH COURT OF ALLAHABAD
Bachchoo Lal, Narendra Kumar Johari, JJ.
Munna – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 860 & 1123 of 1998
Decided On : 13-01-2020
Indian Penal Code – Section 323, 307/34 – Complainant and his son all resident of his village had gone to Shaktideen for some of their work. Shaktideen was not available at his residence, all three persons were returning back. complainant and Ram Kumar Lodhi a resident of his village were going towards Rath from his Village, as they reached near culvert of Badanpura, Bal Kishan @ Ballu Gaderiya carrying country-made pistol in his hand, Lakshmi Prashad Gaderiya carrying axe in his hand and one unknown person who was carrying Ballam, came out of the bushes Renaujha; Lakshmi Prashad exhorted to kill them. On his exhortation, one unknown person pushed Ballam in the wheel of cycle of Suresh, resultantly Suresh fell down and all the three miscreants started beating Suresh; Lakshmi attacked on the head of Suresh by his axe, Bal Kishan fired on Suresh by country-made pistol on the temple of Suresh, resultantly he fell down on the spot and died. When other persons tried to rescue Suresh, one of the miscreants attacked on the thigh of Chaini by his Ballam, resultantly he also fell down. Bal Kishan fired on Sarman by his country-made pistol but the fire was missed then the miscreant who was carrying Ballam in his hand beaten Sarman by his Ballam using as lathi Sarman ran away by shouting voice. complainant and Ram Kumar exhorted and ran towards spot then that miscreant who was carrying Ballam in his hand and Lakshmi both started beating Ram Kumar Lodhi, resultantly all the persons ran away from the spot and started shouting. The miscreants ran away towards north side. The occurrence was seen by so many peoples including above persons. Informant has further stated that at the time of game of Diwali, a fighting and quarrel took place among deceased, Bal Kishan and Lakshmi Prashad. The villagers extricated the quarrel. He has further stated that the miscreant who was carrying Ballam, was a young person, if he will come again before him he will recognize him –Held, Facts, circumstances and evidence as discussed above, we are of the confirmed view that prosecution has succeed to prove the charges of offence under Section 307 read with Section 34, 302 read with Section 34 and 324 and 323 I.P.C. and no illegality or infirmity is found in the judgment and conviction order of sessions court. Appeals have no force. The appellants who are on bail, will surrender before the C.J.M. concerned immediately, failing which C.J.M. concerned will issue NBW against accused appellants – Appeals are dismissed. (Para’s 36, 38)
Facts of the case:
Complainant and his son all resident of his village had gone to Shaktideen for some of their work. Shaktideen was not available at his residence, all three persons were returning back. complainant and Ram Kumar Lodhi a resident of his village were going towards Rath from his Village, as they reached near culvert of Badanpura, Bal Kishan @ Ballu Gaderiya carrying country-made pistol in his hand, Lakshmi Prashad Gaderiya carrying axe in his hand and one unknown person who was carrying Ballam, came out of the bushes Renaujha; Lakshmi Prashad exhorted to kill them. On his exhortation, one unknown person pushed Ballam in the wheel of cycle of Suresh, resultantly Suresh fell down and all the three miscreants started beating Suresh; Lakshmi attacked on the head of Suresh by his axe, Bal Kishan fired on Suresh by country-made pistol on the temple of Suresh, resultantly he fell down on the spot and died. When other persons tried to rescue Suresh, one of the miscreants attacked on the thigh of Chaini by his Ballam, resultantly he also fell down. Bal Kishan fired on Sarman by his country-made pistol but the fire was missed then the miscreant who was carrying Ballam in his hand beaten Sarman by his Ballam using as lathi Sarman ran away by shouting voice complainant and Ram Kumar exhorted and ran towards spot then that miscreant who was carrying Ballam in his hand and Lakshmi both started beating Ram Kumar Lodhi, resultantly all the persons ran away from the spot and started shouting. The miscreants ran away towards north side. The occurrence was seen by so many peoples including above persons. Informant has further stated that at the time of game of Diwali, a fighting and quarrel took place among deceased, Bal Kishan and Lakshmi Prashad. The villagers extricated the quarrel. He has further stated that the miscreant who was carrying Ballam, was a young person, if he will come again before him he will recognize him.
Findings of the court:
Facts, circumstances and evidence as discussed above, we are of the confirmed view that prosecution has succeed to prove the charges of offence under Section 307 read with Section 34, 302 read with Section 34 and 324 and 323 I.P.C. and no illegality or infirmity is found in the judgment and conviction order of sessions court. Appeals have no force. The appellants who are on bail, will surrender before the C.J.M. concerned immediately, failing which C.J.M. concerned will issue NBW against accused appellants.
Result: Appeals are dismissed.
JUDGMENT :
Narendra Kumar Johari, J.
1. The instant appeals have been preferred against the judgment and conviction order dated 27.04.1998 passed by Sessions Judge, Hamirpur in Sessions Trial No. 34 of 1989 (State Vs. Bal Kishan), and Sessions Trial No. 103 of 1989 (State Vs. Munna) under Sections 302, 323, 324 & 307 I.P.C., P.S.- Rath, District- Hamirpur.
2. Both the Sessions Trial have been decided by the common judgment as both the accused persons were involved in same occurrence and Crime No. 443 of 1988. Hence, both the appeals are being decided by the common judgment.
3. By order dated 27.04.1998 learned sessions judge has convicted appellants Bal Kishan and Munna with life imprisonment under Sections 302/34, four years rigorous imprisonment under Section 307/34, one year rigorous imprisonment under Section 324 I.P.C. and imprisonment for six months under Section 323 of I.P.C. concurrently.
4. The facts of the case in brief are that complainant Indra Bahadur Misra moved a Tahrir in Police Station-Rath, District-Hamirpur that Suresh Mishra @ Lalla, Chaini and his son Sarman Chamar all the resident of his village had gone to Shaktideen Lodhi at village-Badanpura for some of their work. Shaktideen was not available at his residence, therefore, all the three persons were returning back. The complainant and Ram Kumar Lodhi a resident of his village were going towards Rath from his Village, as they reached near culvert (puliya) of Badanpura, Bal Kishan @ Ballu Gaderiya carrying country-made pistol in his hand, Lakshmi Prashad Gaderiya carrying axe in his hand and one unknown person who was carrying Ballam, came out of the bushes Renaujha; Lakshmi Prashad exhorted to kill them. On his exhortation, one unknown person pushed Ballam in the wheel of cycle of Suresh, resultantly Suresh fell down and all the three miscreants started beating Suresh; Lakshmi attacked on the head of Suresh by his axe, Bal Kishan fired on Suresh by country-made pistol on the temple (kanpati) of Suresh, resultantly he fell down on the spot and died. When other persons tried to rescue Suresh, one of the miscreants attacked on the thigh of Chaini by his Ballam, resultantly he also fell down. Bal Kishan fired on Sarman by his country-made pistol but the fire was missed then the miscreant who was carrying Ballam in his hand beaten Sarman by his Ballam using as lathi Sarman ran away by shouting voice. The complainant and Ram Kumar exhorted and ran towards spot then that miscreant who was carrying Ballam in his hand and Lakshmi both started beating Ram Kumar Lodhi, resultantly all the persons ran away from the spot and started shouting. The miscreants ran away towards north side. The occurrence was seen by so many peoples including above persons. Informant has further stated that at the time of game of Diwali, a fighting and quarrel took place among deceased, Bal Kishan and Lakshmi Prashad. The villagers extricated the quarrel. He has further stated that the miscreant who was carrying Ballam, was a young person, if he will come again before him he will recognize him.
5. On the basis of above application (tahrir) the F.I.R. of occurrence was registered at Crime No. 443 of 1988, under Section 302 and 307 at Police Station-Rath, District-Hamirpur. The time of occurrence was shown on 11.11.1988 at 12.00 noon and the F.I.R. was lodged on the same day at 3.00 p.m. Inquiry officer Deena Nath Dubey (Pw-7) reached on spot and prepared inquest report of deceased and sent the dead body for post mortem in sealed condition through constable Chote Lal and Hargobind. I.O. also prepared letter for medical inspections of injured persons. He prepared the recovery memo of blood-stained and plain soil from the spot. He recovered one cycle near the dead body of Suresh Chandra Misra and a wrist watch and prepared its memo. He sketched spot map also. The post-mortem of Suresh Chandra was conducted by Doctor N.K. Joshi (Pw-6) on 12.11.1988 and injured persons Sarman, Chaini and Ram Kumar wa
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