- (1.) PALOK Basu, J. Mahendra has filed this appeal against the judgment and order of the First Additional Sessions Judge, Mainpuri, dated 17-11-1978 in S. T. No. 155 of 1978 thereby convicting him under Section 302 read with Section 301,i. P. C. to imprisonment for life and five years' R. I. under Sec tion 307,i. P. C.
(2.) TWO other accused, namely, Ram Pal and Ram Das were also named along with Mahendra in a first information report lodged by P. W. 1, Ram Bharosey at police station Kuraoli, district Mainpuri on 14-9- 1976 at about 1 a. m. This report was taken down under Sections 301/302/307,i. P. C. After investigating by the police it appears that Ram Lal and Ram Das were not prosecuted in court as no chargesheet was filed against them but only Mahendra was charge-sheeted. However, the matter relating to Mahendra proceeded in the court and a complaint was preferred by Ram Bharosey in which after taking cognizance and recording the statement of the complainant and his witnesses, Ram Lal and Ram Das were summoned. That complaint case was amalgamated with the police challani case and, therefore, all the three accused, namely, Mahendra, Ram Lal and Ram Das were tried together by the Sessions judge in the aforesaid Sessions Trial, after having been duly committed to the Court of Session by the Judicial Magistrate, Mainpuri, on 4-4-1978. According to the prosecution case, in the morning of 13-5-1976 wife of Mahendra had a quarrel with the wife of Udal, brother of Ram Bharosey. Consequently at 7. 30 p. m. on that day when Ram Bharosey's wife Smt. Somwati along with the youngest daughter Km. Maya in her lap, his cousin Roshan and daughters Km. Shashi (deceased), P. W. 2, Km. Lakshmi, Suman and his brother Ram Lal were present in the court yard, Jagdish, neighbour's brother and Smt. Dhan Devi, wife of Roshan, were also present in the court yard, Udal, brother of Ram Bharosey, was coming from the riverside lying towards the north- west just at that time appellant Mahendra and co-accused Ram Lal and Ram Das appeared in outer courtyard of the Baithak of appellant Ram Lal in front of the house of Kam Bharosey aad all the three started firing from their firearms at Udal. Mahendra was having a gun while Ram Lal and Ram Das were having country-made pistols, Udal, however, avoided the shots which went inside the courtyard and hit P. W. 2, Km. Lakshmi, K. Maya, Km. Shashi and Jagdish as a result of which Km. Lakshmi received pellet injuries while the other three died as a result of the injuries sustained by the firearms. From a perusal of three post-mortem examination reports it appears that the pellet had travelled into the heart region as a result of which death was caused. The learned trial Judge believed the prosecution version and as such convicted appellant Mahendra but acquitted the two accused Ram Das and Ram Lal, hence this appeal by Mahendra. Sri Kundan Singh, learned counsel on behalf of the appellant and Shri A. K. Dwivedi the learned A. G. A. for the State have been heard at length and the entire record has been examined.
(3.) IN order to prove the prosecution case three eye-witnesses have been examined and they are P. W. 1, Ram Bharosey, P. W. 2, Km. Lakshmi and P W. 3, Matadin. All the accused in their statements denied the participa tion and attributed false implication due to enmity. The defence suggestion to the witnesses appeared to be that the occurrence had not happened at the time, manner and place as suggested in the first information report but had in fact happened due to an accidental firing by Udal himself. P. W. 4, Jaswant Singh is the Investigation Officer and he has proved the lodging of the F. I. R. the chick report (Ex. Ka-3) and the relevant G. D. entry (Ex. Ka-4) and his filing of the charge-sheet. It has come in evidence that the charge-sheet had been filed against Mahendra alone by the police and not against the two named accused. Ram Laland Ram Das for the reason that the eye-witnesses in their statements under Section 161, Cr. P. C. did not name Ram Lal and Ram Das. P. W. 4 has admitted in his deposition in court to the following effect : - "no witnesses, not even Lakshmi and Matadin told me that in the incident along with Mahendra, Ram Lal and Ram Das were present along with the country-made pistols and they too had fired along with Udal. Ram Bharosey alone had made such a statement corroborating his F. I. R. I did not think that the statement of Ram Bharosey alone is sufficient for prosecuting Ram Das and Ram Lal as accused and hence did not submit charge-sheet against those two. ";