- (1.) Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court setting aside the judgment of acquittal recorded by the then III Additional Sessions Judge, Deoria in Sessions Trial No. 347 of 1978. The accused persons faced trial for alleged commission of offences punishable under Sections 147, 148, 307 read with Section 149, Section 436 read with Section 149 and Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short the IPC ). Nine persons faced trial. All of them were charged under Section 307 read with Section 149, 436 read with Section 149 and 302 read with Section 149 I.P.C. Indra Jeet, Awadh Narain and Raj Banshi Tiwari were charged for rioting under Section 147. I.P.C. whereas the rest under Section 148 I.P.C. The incident occurred on 7.7.1978 at about 7.30 P.M. at three places within Police Station Kotwali, District Deoria. The F.I.R. was lodged the same night at 8.20 P.M. by Brij Raj Tiwari (PW-1). One Gunj Prasad Tiwari (hereinafter referred to as the deceased ) was murdered in the incident whereas Subhash (PW 2), Devi Prasad Pandey (PW 5) and Virendra Kumar sustained injuries.
(2.) The case of the prosecution as unfolded during trial through F.I.R. and the evidence may be related thus. Brij Raj Tiwari (PW 1) resided in village Deoria Ram Nath, Police Station Kotwali, District Deoria. The accused were also the residents of the same place. Sarvajeet, Indrajeet and Jagdish accused were real brothers. Om Prakash was the nephew of Sarvjeet and other. Durga Prasad was the son of accused Awadh Narain. The accused Rajbanshi Tiwari and Raj Kishore were Patidars of accused Awadh Narain and the accused Awadh Narain and accused-appellant belonged to the group of the remaining accused. Enmity on account of litigation was going on between the family of the informant Brij Raj Tiwari PW 1 on the one hand and the accused Sarvjeet and Raj Kishore on the other. Earlier to the present incident, on the eve of Holi some one had inflicted a knife blow on the accused Sarvjeet in which Subhash Tiwari PW 2 (brother of the informant) was implicated as accused. Sometime thereafter, Hari Ram first cousin of accused Durga was also inflicted knife blow by someone in which the informant, his father Guru Prasad the deceased, Mahasarey, Subhash Tiwari (PW-2) and Jai Shankar were implicated as accused. Proceedings under Sections 107/117 of the Code of Criminal Procedure, 1973 (in short the Code ) had also been drawn between the informant and others on one side and the accused Durga and Hari Ram on the other. In front of the door of the house of the informant there was a flour mill adjacent to which on the northern side the house of the accused Durga Prasad and Hari Ram was situated and on the eastern side thereof the house of the accused Sarvjeet was situated at a distance of about 10 paces from the flour mill. During the thrashing season, dust and sound came to be produced because of generation of the flour mill to the disliking of the accused. The accused Sarvjeet, Durga Prasad and Hari Ram had applied for electric disconnection of the informant before the Electricity Department prior to the present incident in which , the accused Raj Kishore was cited as a witness. A case under Section 133 of Code was instituted against the informant by the police which came to be decided in favour of the informant. So, there was a long string of enmity between the two sides. The present incident occurred in three parts. At about 7.30 P.M. on 7th July, 1978 Subhash- the younger brother of the informant was sitting at his grocer s shop on the crossing in front of the house of Sri Vishwa Nath Pandey, Advocate. All the accused with 2 or 3 other companions reached there. Sarvjeet and Om Prakash had bombs in their hands; Jagdish had a gun; Ram Narain had country made pistol; Raj Kishore had a spear. Durga Prasad had a Pharsa and the remaining accused had lathis. As soon as they reached the shop of Subhash, accused Sarvjeet and Om Prakash attacked Subhash by means of bombs, Ram Narain by means of country made pistol and Jagdish by means of gun. Subhash ran for his life and anyhow saved himself but was hurt in his leg in this process. This occurrence was witnessed by Jagdish Mani, Chandbali Pasi, Brijesh Tiwari and others. The second part of the incident was that the accused came running to the grocer s shop of the informant at Bhatwalia Crossing in search of Subhash and not finding him there, threw bombs and also fired. The accused Indrajeet set fire to the shop of the informant which was reduced to ashes. Mahasarey- brother of the informant, Devi Prasad Pandey, Surendra Prasad, Rajesh Singh and others witnessed this incident. Then the accused came running to the door of the house of the informant where Guru Prasad the deceased was present. They inquired from him about Subhash saying that he would not be left alive that day. Guru Prasad wanted to know as to what the matter was. But the accused Sarvjeet instigated the remaining accused saying that if Subhash was not available, he (Guru Prasad) should be killed. Instantaneously, Sarvjeet attacked Guru Prasad Tiwari throwing a bomb and Ram Narain by means of the country made pistol. Guru Prasad died on the spot. The incident was witnessed by the informant, Ram Darash Tiwari, Bhagirathi Yadav, Nand Kishore, Hari Prasad and Munni-sister of the informant. The accused persons then ran away. At the time of the incident electric light was available at the door of the informant. This was the third part of the incident. Leaving the dead body of his father at the door, the informant went to the Police Station, and lodged the F.I.R. resulting in registering of the case. Investigation was taken up by Tota Ram Gupta (PW-13). It may also be related here that the injuries of Subhash Tiwari (PW 2), Virendra and Devi Pandey (PW-5) were examined on 7.7.1978 at 10.45 P.M., 10.55 P.M. and 11.05 P.M. respectively by Dr. J.N. Thakur (PW 8). After completion of investigation charge sheet was filed and the accused persons faced trial as they denied accusations. Thirteen witnesses were examined to further prosecution version. The trial Court held that the accused persons were entitled to acquittal as the witnesses examined did not establish the accusations. An appeal was filed questioning the acquittal. The High Court found that PWs 1, 4 and 6 who are eye witnesses clearly established the accusations. It also found that the source of light was mentioned in the FIR. Accordingly, the acquittal was set aside and appeal was allowed qua the present appellant. It was noted that the appeal had abated in respect of accused Sarvjeet, Om Prakash, Raj Kishore and Awadh Narain who died during the pendency of the appeal. The acquittal recorded for the remaining accused persons namely, Indrajeet, Jagdish, Ram Narain, Durga Prasad and Raj Banshi Tewari was maintained.
(3.) Learned Counsel for the appellant submitted that the aspects highlighted by the trial Court to record acquittal should not have been upset by the High Court when the view taken by the trial Court was not perverse and was a possible view.;