M. C. Jain, J. - (1.) -The State of U. P. has come up in appeal against the judgment dated 14.10.1981 passed by Sri S. C. Jain, the then Sessions Judge, Mirzapur in Sessions Trial No. 264 of 1980, acquitting the two accused respondents-Kishore Singh and Daya Chaubey of the charge under Section 302, I.P.C. read with Section 34, I.P.C. relating to the murder of one Smt. Subhadra Verma, allegedly in furtherance of their common intention.
(2.) THE deceased Smt. Subhadra Verma was a midwife and belonged to District Ballia where her husband was employed as lecturer in some college. She had been transferred to Robertsganj. After purchasing some land in village Sihore, she had constructed a small house. Accused Kishore Singh belonged to Robertsganj while Daya Chaubey resided in village Majhgawa situated nearby. In July, 1980, a theft was committed at her house. THE report had been lodged without naming anybody but nothing came out and final report was submitted. She suspected that the two accused respondents were behind that theft and had so held out all around. It was resented to by the accused-respondents and they started harbouring grudge against her. In village Sihore, she was living alone. Her eldest son was a doctor, doing house job in Kabir Chaura Hospital, Varanasi. Her second son Arvind Kumar P.W. 8 was studying in Intermediate. However, because of floods his college was closed and 3-4 days before the incident he had come to live with his mother. THE incident took place between the night of 3/4th September, 1980. She and her son Arvind slept in the only completed room of their house. A lighted lantern was there. At about 11.30 p.m. the accused respondents allegedly appeared there after breaking open the door. THEy had countrymade pistols wherewith they opened fire on her. Sustaining the fire shot injuries in her abdomen, she fell down and the accused respondents escaped. Baijnath P.W. 1 and Chandra Shekhar P.W. 2 were related to her and lived in village Shripalpur situated nearby. Hearing the sound of gunshot they rushed to the scene along with other villagers. Sound of groaning was coming out from inside the house. THEy called Arvind who then opened the main door facilitating their entry inside. THEy found the lady lying injured on the ground in a state of great distress near by her cot. She was removed on a cot to the police station and at her dictation the report was allegedly scribed by Baijnath P.W. 1 and presented at the police station at 2 a.m. The investigation was taken up by S.I. Kalp Nath P.W. 9 (to be ultimately completed by S.I. S. N. Singh P.W. 7). S.I. Kalp Nath P.W. 9 allegedly recorded the statement of injured and then sent her to hospital escorted by Constables Lallan Rai P.W. 5 and Dwarika Singh. She was examined by Dr. Visheshwar Singh P.W. 3. She was then referred to District Hospital, Mirzapur, after giving some elementary treatment. She, however, expired at about 3.30 a.m. before being admitted in District Hospital, Mirzapur. Constable Dwarika Singh then proceeded to the police station and the case was converted into one under Section 302, I.P.C. The dead body after being sealed was sent for post-mortem. From the spot the Investigating Officer recovered pellets and wads in the room of the incident. The broken door and a ladder found on the spot were taken in possession and given in the custody of Chandra Shekhar P.W. 2. On autopsy being conducted by Dr. Visheshwar Singh P.W. 3 on 4.9.1980 at 3.30 p.m. she was found to be aged about 45 years and about half day had passed since she died. There was gunshot wound in her abdomen without any tattooing, blackening or scorching. Intestine had come out through the injury and large and small both intestines had been punctured, 65 pellets, wads and pieces of cardboard were found in the wound. The prosecution relied on the testimony of Baijnath P.W. 1, Chandra Shekhar P.W. 2 and Arvind Kumar P.W. 8 besides backing upon medical and formal evidence relating to investigation and allied matters. Arvind Kumar P.W. 8 was said to be the eye-witness of the incident. The prosecution also sought to rely on the statement of the deceased claimed to have been recorded by the first S.O. Kalp Nath P.W. 9, which was designated as her dying declaration.
(3.) THE defence was of denial and false implication. The learned trial Judge held that the manner in which the F.I.R. was lodged was suspicious ; that the so-called statement of the deceased could not be treated as her dying declaration and that the presence of Arvind Kumar P.W. 8 at the time of the incident was doubtful and, therefore, he could not be relied upon as an eye-witnesses. With this main approach, he recorded the finding of acquittal which has been assailed by the State in this appeal.;