- (1.) In Sessions Trial No. 395 of 1976 the appellant Hari SHAnker was charged and tried under Section 302, Indian Penal Code along with the RESPONDEnt Shiam BEHari who was charged and tried under S. 302/34, Indian Penal Code and both were accordingly found guilty and sentenced to undergo life imprisonment by the Sessions Judge, Budaun. The appellant Hari SHAnker wen up in appeal being CRIMINal No. 2417 of 1977 and the RESPONDEnt Shian BEHari also filed separate appeal being CRIMINal No. 2082 of 197 against their respective conviction and sentence. The High court of Allahabad by a common judgment dated 27/3/1987 gave the benefit of doubt to RESPONDEr Shiam BEHari and, therefore, allowed his appeal and acquitted him of the offence he was charged with. However, the appeal of the appellant Hari SHAnker was dismissed by the High court against which he has filed CRIMINal No. 3 of 1988. Subhash Chand the son of the deceased Parshadi Lal has filed criminal Appeal No. 29 of 1988 against the aforesaid order of acquittal of respondent Shiam BEHari recorded by the High court.
(2.) Briefly stated the prosecution case was that Smt Sushila Devi, the wife deceased Parshadi Lal had leased her land to the RESPONDEnt Shiam BEHari is 12/1/1972 for purposes of manufacture of bricks. Smt Sushila had issued noti to the RESPONDEnt Shiam BEHari on 6/3/1976 through her advocate demandingthe arrears of rent amounting to Rs. 8,000. 00, which was served on Shiarn BEHari on 26/3/1976. On 23/7/1976 one Rajesh Kumar, brother of son-in-law of Ved Prakash, Public Witness 1, resident of the same locality in Budaun had died but the deceased Parshadi Lal could not join the funeral for want of information. The deceased Parshadi Lal, therefore, went to the house of Sita Ram, the father of Rajesh Kumar in Mohalla Chaudhary Sarai along with his friend Chandra Pal Varshney, Public Witness 4 for condolence. It is said that at about 1. 00 p. m. the RESPONDEnt Shiam BEHari and the appellant Hari SHAnker also reached there at the house of Sita Ram where the RESPONDEnt Shiam BEHari raised Bhatta dispute with deceased Parshadi Lal and protested against the notice served on him. According to the prosecution during the heated exchange deceased Parshadi Lal is said to have told Shiam BEHari that he would not permit him the manufacture of bricks unless the arrears of rent were paid. The RESPONDEnt Shiam BEHari went away saying that he SHAll see how he did not permit the brick-kiln to work. Further prosecution case was that on the same day at about 2. 00 p. m. when Chandra Pal, Public Witness 3 of Brahampur, Budaun arrived at the house of Sita Ram the deceased Parshadi Lal accompanied by Chandra Pal Varshney, Public Witness 4 got up to go back home. Parshadi Lal kicked his motor cycle to start but it could not start. He and Chandra Pal Varshney then pushed the motor cycle with a view to start it. It is said that in the meanwhile the appellant Hari SHAnker with a single barrel gun and the RESPONDEnt Shiam BEHari came running from BEHind. Shiam BEHari caught hold of the motor cycle from BEHind and commanded the appellant Hari SHAnker to fire at Parshadi Lal and kill him. At this the appellant Hari SHAnker fired a gunshot on the back of Parshadi Lal who fell on the ground and the appellant Hari SHAnker and RESPONDEnt Shiam BEHari immediately vanished from the place of occurrence and while going away Hari SHAnker threw down the spent cartridge and loaded the gun again. The incident is said to have been seen by Ved Prakash, Public Witness 1, Chandra Pal, Public Witness 3 and Chandra Pal Varshney, Public Witness 4 who were present at the time and place of occurrence. Ved Prakash, Public Witness 1 took injured Parshadi Lal to Budaun Hospital where he died soon thereafter.
(3.) Ved Prakash went to Kotwali, Budaun where he lodged a report Ext. Ka-I same day at about 3.40 p. m. on the basis of which FIR Ext. Ka-4 was recorded by Head Constable Bhim Singh, Public Witness 5. ASI Abdul Majid Khan, Public Witness 6 prepared Panchnama of the dead body Ext. Ka-12 in the hospital. Dr S. K. Nagauria, Public Witness 2 performed an autopsy on the dead body of Parshadi Lal on 25/7/1976 and as per his post-mortem report Ext. Ka-2 he found the following ante-mortem injuries on the dead body of Parshadi Lal. Wound of entrance 1/5 cm x 1 cm on the left lower chest posteriorly back 4 cms away from midline 20 cms below cervical spine with surrounding blackening in an area of 5 cms x 3 cms. Direction of the wound of entrance was upwards and towards heart. On internal examination of the dead body the doctor found a piece of cork in the muscular wall. A pellet was found in the intercostal space and one pellet was found in the left 6th intercostal space. Left side pleura was ruptured and left lung was also ruptured. The doctor also found one cork piece in the tissue of lower lobe of left lung. Pericardium was also ruptured. One pellet with a cork piece was found BEHind the posterior wall. The pellets and cork piece recovered from the dead body were sealed and sent to the police station. In the opinion of thedoctor the death was due to shock and hemorrhage as a result of the aforesaid injuries which were sufficient in the ordinary course of nature to cause death. In the opinion of the doctor the victim would have been fired from a distance of about 3 feet.;