- (1.) SURYA Prasad, J. This is a criminal appeal the judgment and order, dated 18-7-79 passed by the then VII Additional Sessions Judge, Shahjahanpar in Sessions Trial No. 606 of 1978 convicting the appellants under Sections 147 and 307 read with Section 149, I. P. C. and sentencing them to two years' and 5 years' rigorous imprisonment each, respectively, there under.
(2.) THE prosecution case in brief is that the informant Lal Bahadur, son of Bhudhar is a resident of village Jarbhan within the Police Station Powayan, district Shahjahanpur. It is alleged that one Ram Singh resident of the said village was murdered a few months back. Consequently, Ram Singh's brother Ram Sagar had implicated Lal Bahadur, his brothers and six others in the murder case of Ram Singh. Not only this but he (Ram Sagar) had also lodged first information report against him (Lal Bahadur) and two others of the said village under Section 307, I. P. C, 3, 4 months after the murder of Ram Singh. THErefore, Ram Sagar had generated feelings of animocity against Lal Bahadur and other members of his family. lalbahadur was released on bail 20-21 days back in the said case. It is further alleged that Ram Sagar had formed a party consisting of himself, Buddhu Lal, Jagar Nath and Sheo Nandan residents of the said village and one Murari Pasi resident of village Takeli with a view to killing him (Lal Bahadur ). It is further alleged that lalbahadur apprehended danger to his life and, therefore, he made up his mind to settle in village Gagsara where his brother Hardwari's Sasural was. It is further alleged that lalbahadur alongwith his brothers Hardwari, Paftoo Lal and brother-in-law (Sala) Nilkanth was going to the said village Gagsara. It was at about 1. 30 p. m. that they reached the field of Balkoo Dhobi resident of village Takeli and were surrounded- by Ram Sagar and Sunder Lal, sons of Dadram, Jagarnath son of Kissa Pasi, Shivnandan Singh son of Roop Singh resident of the said village Jarbhan and Murari resident of village Takeli. Sunder lalwas armed with a gun whereas others were holding Lathis in their hands. THEy threw challenge to him (Lal Bahadur) and expressed that they would not spare him. THEreafter a fire was shot at him at once. That fire-shot hit his brother Puttoo Lal. THEy all raised alarm. But thefabovenamed accused persons started weilding lathis on Putto Lal indiscriminately. Hearing the alarm raised, Ram Das son of Khayali and many others of his village, while shouting rushed to the place of occurrence. Consequently, the accused fled away leaving Puttoo Lal on the spot. lalbahadur took Puttoo Lal to the police station by a bullock-cart and lodged a report there. After the completion of the usual investigation a charge-sheet was submitted and on that basis a case was registered. THE appellants Murli and Sheo Nandan were tried on that basis in the Session Trial No. 606 of 1978, State v. Murli and other and on the conclusion of the evidence they were convicted and sentenced by the aforesaid learned Additional Sessions Judge, vide his impugned judgment and order as mentioned above. Being aggrieved they preferred the present appeal against the same. It may not be out of place to mention that the co-accused Ram Sagar, Jagarnath and Sunder lalin respect of the same incident the facts of which have been narrated above were tried separately in the earlier Sessions Trial No. 303 of 1975 wherein the then learned VII Additional Sessions Judge, Shahjahanpur convicted them under Section 147, I. P. C. and 307 read with Section 149, I. P. C. and sentenced them, respectively, to one year's and five years' rigorous imprisonment there under. He further convicted Sunder lalunder Section 148, I. P. C. and 307 read with Section 149, I. P. C. and con victed him to two years' and five years' rigorous imprisonment, respectively there under. Having been aggrieved of the judgment and order the co-accused Ram Sagar and others preferred a Criminal Appeal being Appeal No. 2186 of 1977, Ram Sagar and others v. State of U. P. , against the same. The Hon'ble High Court vide its judgment dated 26-4-1982 allowed the said appeal, set aside the judgment and order of the Additional Sessions Judge and acquitted the co-accused Ram Sagar, Jagarnath and Sunder lalof the charges levelled against them. Certified copy of the judgment of Criminal Appeal No. 2186 of 1977 has been filed by the appellants in the instant Criminal Appeal No. 2189 of 1979 Murli and another v. State.
(3.) HEARD the learned counsel for the parties at length and perused the entire record. There were only two witnesses lalbahadur and Puttoo Lal who was injured were examined in the aforesaid Sessions Trial No. 303 of 1975. Only these two witnesses were also examined in the subsequent Session Trial No. 606 of 1978 to which the present appeal relates. lalbahadur and Puttoo Lal are real brothers as mentioned earlier.;