Decided on December 21,1990


Cited Judgements :-



- (1.)The three appellants in this appeal are challenging the correctness of the judgment of the High court of Allahabad (Lucknow bench) rendered in Criminal Appeal No. 61 of 1974 dismissing the appeal and confirming the judgment of the trial court. The facts of the case briefly stated are as follows: on 25/06/1972 the brother of Shyam Sunder (appellant 1, by name, Suresh was murdered. The deceased in this case Raj Narain was implicated in that case and he surrendered before the court on 28/06/1972. One month previous to this occurrence, the deceased had been granted bail and released from jail. Since then he left his original house on account of fear and was residing in Kanhaipurwa along with one shambhu Dayal, but occasionally visited his old house. Vinod Kumar (appellant 2 is the son of appellant 1 and both of them were residing at mohalla Unchathak which adjoins the village where Raj Narain along with his family members initially used to reside. On account of the murder of Suresh there was bitter animosity between the appellants 1, 2 and the deceased.
(2.)On 27/08/1972 at about 8.30 p. m. while the deceased was proceeding to his house, the three appellants surrounded him. Appellant 2 caught hold of the deceased and appellant 1 gave a blow to the deceased by the butt of his gun. Thereafter appellant 3 fired a shot with his pistol from behind the deceased and caused an injury, to which injury he succumbed later on. On seeing the witnesses approaching the scene, all the appellants took to their heels. The injured was brought to the house of one Radha Krishna. Smt Ram Beti and Smt Vimla took the injured to the police station, Kotwali, where the injured Raj Narain lodged a report at about 9. 05 p. m. On the basis of the report a case was registered. Ex. Ka-5 is the first information report. Then Raj Narain was removed to the District Hospital where he was medically examined by about 10 p. m. The Medical Officer found on his person a lacerated wound the left ear and a gunshot wound on the left side of his back with blackening around the wound. Since the condition of the injured was dangerous, a dying declaration was recorded by the First Class Magistrate on a requisition from the Medical Officer, at about 10. 55 p. m. The dying declaration is marked as Ex. Ka-7. The Sub-Inspector took up the investigation and interrogated the injured Raj Narain and recorded his statement as Ex. Ka-12, which statement was similar to that of Ex. Ka-7. The Investigating Officer after visiting the scene spot examined the witnesses. Raj Narain died on 29/08/1972 at about 9.50 p. m. The investigating Officer held the inquest over the dead body. Dr S. C. Raj conducted autopsy over the dead body. After completing the investigation the challan was filed. The defence of these appellants was of a complete denial. Vinod Kumar stated in his recorded statement under S. 313 Criminal Procedure Code that since he was an injured witness in the murder case of Suresh, he is falsely implicated in the case. Appellant 3 stated that since he happens to be the cousin of appellant 1 he has been falsely implicated. The trial court convicted appellant 3 under S. 302 (simpliciter) and appellants 1 and 2 under S. 302 read with S. 34, Indian Penal Code and sentenced each of them to undergo imprisonment for life. The High court on appeal confirmed the judgment of the trial court. Hence this present appeal.
(3.)During the course of the hearing of the appeal, it was brought to our notice that appellant 3 had died. As no near relative of the deceased has approached this court within 30 days of the death of appellant 3 for leave to continue the appeal as contemplated under S. 394, the appeal as against appellant 3 abated. Therefore, now we are concerned only with the case of appellants 1 and 2.

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