U. S. Tripathi, J. - (1.) -Chiranju and Sheo Prasad appellants have preferred this appeal against the judgment and order dated 31.7.1981 passed by Sessions Judge, Kanpur in Sessions Trial No. 133M of 1981 (Metropolitan Area) convicting both the appellants under Section 302 read with Section 34, I.P.C. and sentencing each of them to undergo imprisonment for life.
(2.) PROSECUTION story, briefly stated, was as under : Appellants Chiranju and Sheo Prasad were real brothers and sons of Dwarika. Ayodhya Prasad deceased was cousin brother of Dwarika, the father of appellants. Chhunna alias Virendra Kumar (P.W. 1) was the son of Ayodhya Prasad. There was enmity between the appellants and Ayodhya Prasad deceased regarding land. In the year 1972 Munna alias Mahendra another son of Ayodhya Prasad and brother of Chhunna (P.W. 1) was murdered and injuries were caused on Ayodhya Prasad. Appellants Chiranju and his brother Sheo Prasad, their father Dwarika, Heera Lal and Ram Pal were tried for the said murder of Munna. Except Heera Lal, other accused of the said case were convicted and sentenced by the Sessions Court, but they were acquitted by the High Court. On 18.10.1976 Shiv Kumar another son of Dwarika and brother of appellants was murdered in which Ayodhya Prasad deceased, Chhunna (P.W. 1) and his brother Sunder Lal were prosecuted. On account of above litigations there was strong enmity between the appellants and the deceased. On the morning of 11.1.1981 at about 6-6.30 a.m. Ayodhya Prasad deceased along with Chhunna (P.W. 1) and Dwarika Prasad son of Ganga Ram (P.W. 4) and Ram Shankar was going to Siddha Nath Mandir for darshan. When the deceased and above persons reached the ground of J.P.R.N. School, the appellants Chiranju and Sheo Prasad along with their brother Heera Lal, their cousin brothers Chandra Pal and Vishambhar, and their friend Kali Charan were present on the ground of said college. Appellant Sheo Prasad was having 'Banka' and other accused were having country made pistols. The above appellants and accused persons abusing Ayodhya Prasad surrounded him. Chiranju appellant fired on Ayodhya Prasad, which hit on his temporal region and he fell down. Thereafter, Vishambhar fired and appellant Sheo Prasad inflicted Banka injuries on Ayodhya Prasad. The other accused persons were exhorting that he (deceased) should not escape, Chhunna (P.W. 1), Virendra Kumar (P.W. 3), Dwarika Prasad (P.W. 4) and Ram Shankar saw the occurrence by hiding themselves behind the urinal of the school. After committing murder of the deceased, the appellants and other accused ran away towards Siddha Nath temple. There was sufficient light at that time. Leaving Dwarika Prasad (D.W. 4) and Ram Shankar near the dead body, Chhunna (P.W. 1) came to his house, where he prepared written report (Ext. Ka-1) and thereafter along with his uncle Jamuna Prasad came to police station Cantonment, where he lodged report at 7.20 a.m. On the basis of written report, Head Constable Ram Autar Shukla (P.W. 5) prepared chik report (Ext. Ka-3) and made an endorsement of the same at G. D. report (Ext. Ka-4) and registered a case against the appellants Chiranju, Sheo Prasad and other accused Kali Charan, Vishambhar, Chandra Pal and Heera Lal under Sections 147, 148, 149 and 302, I.P.C.
(3.) INVESTIGATION of the case was taken up by Sri Sagir Mohammad, Investigating Officer (P.W. 6). He reached the spot alongwith Sub-Inspector Tyagi and other police officers at 8.45 a.m. The dead body of Ayodhya Prasad was lying on the spot. Sub-Inspector R. S. Pandey and other police officers of police outpost Jajmau were also present. Sri Sagir Mohammad, Investigating Officer (P.W. 6) conducted inquest of the dead body of the deceased and prepared inquest report (Ext. Ka-6) and other relevant papers. He took into possession blood stained clothes of the deceased and prepared recovery memo. Dead body was sealed and handed over to Constable Ramji Tewari and Ram Murari for post-mortem. The Investigating Officer interrogated Chhunna (P.W. 1) on the spot and on his pointing out inspected place of occurrence and prepared site plan (Ext. Ka-17). He also collected blood stained and simple earth from the spot. An empty cartridge was also recovered from the spot. Autopsy on the dead body of deceased was conducted on 11.1.1981 by Dr. D. S. Shukla (P.W. 2) who found as many as 12 incised wounds on different parts of the dead body of deceased and one gun shot wound on left side of face of the deceased as ante-mortem injuries and cause of death due to shock and haemorrhage as a result of ante-mortem injuries. He prepared post-mortem report (Ext. Ka-3). On 14.1.1981 the Investigating Officer interrogated other witnesses and on completion of investigation submitted charge-sheet against Chiranju and Sheo Prasad appellants and Kali Charan, Chandra Pal and Heera Lal. Accused Vishambhar was not challenged.;