- (1.) THIS appeal has been preferred by the sole appellant Kamla against his conviction u/s 307 I.P.C. and imposed sentence of two years R.I. therefor recorded by IInd Additional Session's Judge, Azamgarh, vide impugned judgement and order dated 6.3.1981, passed in S.T. No.502 of 1976, State vs. Sugriv and others, relating to P.S. Doharighat, district Azamgarh.
(2.) STATED briefly, prosecution allegations against the appellant, as was scribed by the informant Prem Singh(P.W.1), in his written report, Ext. Ka.1, were that on the festive day of Holi,27.3.75 at 9p.m., song and dance party of Phool Chand Harijan of village Mahula was putting up it's show at the door of Khurmilli, a collateral of the informant Prem Singh(PW1), which was adjacent to the informant's house in village Bankatia. Two mikes, facing different directions, east and south, towards village populations, were attached with it and hence sound decibel of those loudspeakers were much more. Same day, same time,in the same village, another dance party of Ram Dahil of village Baridand, was also performing hundred paces away, at the door of village Pradhan Babu Lal. Only one mike was fixed with it facing towards down town village, and hence it's sound decibel was much less. Rankled by the said arrangement, persons belonging to Pradhan faction took it abash and, under leadership of Sugriv, s/o Babu Lal , village Pradhan, Kamla, Parmeshwar, Purshottam, Rambhuj, Basant, Ram Briksha, Shivraj, Dineshwar, Nagina, Panna Lal, Meghu, Kedar, Shivbachan, Barakhu, Sugriv, Mahatam, Bahadur and Lal Chand raided the door of Khurmulli, where song and dance party was performing. Accused Kamla was armed with a country-made pistol, Purshottam was armed with a ballam and rest of the accused were armed with clubs (lathies). No sooner this unlawful assembly arrived at the door of Khurmulli, they forcibly attempted to twist loudspeakers direction towards horizon, so that it's sound be not audible in the village, because of which a verbal tirade ensued between rival factions during which informant was threatened with his life. This brawl was soon followed by an instigation by Kamla, who thereafter shot at the informant, but informant sprinted and silhouetting himself behind a wall and saved his life. Fired pellets ricocheted from the ceiling and caused injuries to Prithvi, Harish Chandra and Ram Adhar, who were enjoying song and dance party at the door of Khurmulli. Gun fire created stampede. Nagina accused assaulted Khurmulli with lathi, whereas Mahatam assaulted Mukti Nath. Gayasuddin, loudspeaker person had also sustained injury in the incident. Swami Nath, Ram Nayan and many other villagers had witnessed this incident in the lights of three gas petro-maxes, which were burning at Khurmulli's door and it facilitated accused identification. Kamla tried to reload his country-made pistol, but informant caught hold of it and cartridge was dropped on the ground. Gathered spectators, who were enjoying the dance party, dispersed hither and thither, deserting incident scene. While fleeing from the spot, accused took away all the petro-maxes, two big carpets, a blanket, two bed covers, a harmonium and some curtains etc. Informant, after accused had retreated from the spot, went to a congress party worker, Ram Samujh Yadav, at Kakhbhar market, at 9.30/10 p.m., to lodge a protest and get his FIR registered with his help, but, meanwhile, all the eighteen miscreants also arrived there, armed with their respective weapons, and there also accused Kamla shot at Ram Samujh thrice, but providentially, he escaped unhurt and ran away from the spot. Gun fires sound attracted Puddan, Kedar and Suryabhan Yadav,(village chowkidar), and many others, armed with torches and lathis, towards the spot, who apprehended accused Bahadur at the spot. Rest of the seventeen accused fled away from the spot, but while sprinting away, they carried transistor of Ram Samujh. Thereafter, informant accompanied with Ram Samujh, came to police station Doharighat and lodged his scribed FIR, Ext, Ka 1, same day at 11.00 P.M. vide chik FIR Ext. Ka.2. Head Moharrir prepared chick F.I.R., Ext. Ka.2 and G.D. Entry Ext. Ka.3. S.O. Banshidhar Gupta, of P.S. Daharighat, commenced investigation into the crime on 28.3.1975, recorded statements of various witnesses and thereafter recorded statements of, accused Bahadur, Meghu, Shivbachan, Lal Chand and Barakhu, who all were arrested meanwhile. Thereafter P.W.5(I.O.) interrogated and penned down statements of Harishchandra, Muktinath and Khurmulli and subsequent thereto conducted spot inspection and sketched site plan map Ext. Ka.4. From the incident seen, I.O. had collected two empty cartridges and one live cartridge and had sealed them. Concluding investigation, on 24.4.1975, he had charge sheeted accused vide Ext. Ka.7.
(3.) CHARGE sheeting of the accused resulted their summoning and their case was committed to the Session's Court for trial, where it was registered as S.T. No.502 of 1976, State vs. Sugriv and others. Learned Trial Judge charged all the accused with offences under sections 147, 148, 307/149, 323/149 I.P.C. on 18.6.1979. Appellant accused Kamla was separately charged under section 307 I.P.C. Since all accused denied those charges and claim to be tried, to establish their guilt, trial procedure was under taken, during course of which, informant Prem Singh(P.W.1), Mukti Nath(P.W.2), Ram Adhar(P.W.3), Ram Samujh(P.W.4 ) and formal witness Banshidhar Gupta(P.W.5 ) were examined by the prosecution besides tendering documentary evidences. Accused, in their statements u/s 313 Cr.P.C., denied incriminating circumstances appearing against them and pleaded defence of their false implication. Learned trial judge, vide impugned judgement and order dated 6.3.1981 concluded, that prosecution had not been able to establish it's case against all the accused, except the appellant, and therefore, acquitted rest seventeen accused from their respective charges u/s 147, 148, 307/149, 323/149 and 379 I.P.C. He, however, convicted only the appellant, u/s 307 I.P.C. and sentenced him to two years R.I., which conviction is under challenge in the instant appeal. At the time when the appeal was called out for hearing, nobody appeared on behalf of the appellant to argue it and, therefore, Shri Sudist was appointed as amicus curiae.;