Point of Law: Offence of Murder - Conviction set aside - No one actually witnessed incident and FIR was lodged on basis of guess-work and suspicion and appellants have been implicated on account of suspicion because of previous enmity.

JUDGMENT :

Sanjay Kumar Pachori, J.

1. The present appeals are filed against the judgment and order passed by Special Judge/Additional Sessions Judge, Ballia, on 28.2.2009 in Sessions Trial No. 51 of 2008 by which the appellants Indrajit Mishra, Sanjit Mishra and Mukesh Tiwari have been convicted for the offences punishable under Section 452, 302 read with section 34 Indian Penal Code (in short “I.P.C.”). The punishment awarded to the appellants for their conviction noticed above is as follows; imprisonment for life with a fine of Rs. 5,000/-each and default sentence of six months under section 302 read with section 34 I.P.C., and five year’s rigorous imprisonment with fine of Rs. 5000/-each and default sentence of six months additional imprisonment under Section 452 I.P.C. The sentences were directed to run concurrently. Since the abovementioned appeals arise from a common judgment of the trial court, it will be proper for us to deal with these appeals in a common judgment.

PROSECUTION CASE

2. The Prosecution case in brief, as could be elicited from the First Information Report (in short FIR) lodged by Smt. Manorama Devi (PW-1) is that Smt. Manorama Devi and her husband Pratap Shankar Mishra (deceased) were sleeping in a room of their house on the intervening night of 29/30.7.2007. Her brothers Ajit Narayan Pathak (PW-2) and Lalit Narayan Pathak (not examined) were also sleeping in the courtyard at that time. At around 2:00 a.m., she woke up hearing a rattle upon entry of persons in her room. At that time door of the room was open and a lantern was lit. She saw the appellants Indrajit Mishra with a hockey stick, Sanjit Mishra with a knife and Mukesh Tiwari with a Katta in their hand. Indrajit Mishra attacked her husband with a hockey stick. Her husband got up from the cot and tried to run towards the courtyard but Indrajit Mishra and Sanjit Mishra caught him at the door of the room and Mukesh Tiwari shot at point-blank range on his neck, her husband fell down after receiving firearm injury. Ajit Narayan Pathak (PW-2) and Lalit Narayan woke up on hearing her cries. They tried to catch the appellants, but they fled away by jumping over the boundary wall. The injured was taken to the hospital, where he died. Due to enmity between the appellants and her husband, on account of civil and criminal litigation as well as a family partition, her husband was killed.

3. After the incident, CP-337 Kanhaiya Yadav (PW-4) along with Sub-Inspector1 Surendra Yadav (not examined) while on patrol duty, reached the place of occurrence on hearing the gunshot and noise. The injured Pratap Shankar Mishra was brought from the spot to District Hospital Ballia by Tata 407 vehicle with Mazarubi Chitthi (not proved). In the District Hospital, at about 3:50 a.m., he succumbed to the injuries. Ajit Narayan Pathak (PW-2) informed Smt. Manorama Devi, at 4:30 a.m., about her husband's death.

4. The First Information Report dated 30.7.2005 (Ex.Ka-2) was registered as case crime No. 117 of 2007 under section 302 I.P.C. against the appellants at Police Station-Reoti, District Ballia, at 5:20 a.m. by CP-598 Deo Nath Singh (PW-3), on the basis of a written complaint (Ex.Ka-1) of Smt. Manorama Devi (PW-1) which was scribed by Ajit Narayan Pathak (PW-2). The distance between the place of occurrence and the Police Station is 1/2 Km.

5. On 30.7.2007, S.I. Hasmat Khan (PW-7) started the investigation of the case and after inspecting the place of the incident, as pointed out by the informant (PW-1), he prepared a site map (Ex.Ka-8) of the place of the incident. He also recovered blood-stained and plain earth from the place of the incident and prepared a seizure memo (Ex.Ka-9). The proceedings of the inquest were completed at about 1:30 p.m. by S.I. Hari Prasad Vishwakarma (PW-8) at the mortuary of District Hospital Ballia and inquest report (Ex.Ka-7) was prepared on the basis of death information Memo (Ex.Ka.-5) received from the Hospital. He also prepared other police papers