- (1.) D. P. Gupta, J. The Sessions Judge, Basti vide his judgment and order dated 1-8-1990 passed in S. T. No. 236 of 1989, State v. Jai Prakash @ Golu, under Section 302 IPC, P. S. Chiliha, District Siddhartha Nagar, convicted and sentenced the accused appellant Jai Prakash to undergo imprisonment for life under Section 302 IPC. Feeling aggrieved the present appeal was preferred by the appellant.
(2.) THE facts giving rise to this appeal can be narrated in brief as under: THE complainant P. W. 1, Smt. Barfa Devi, was the wife of Lavkush (deceased ). Ambika and Chandrika Nath were real brothers. Chandrika had no issue. Ambika was the father-in-law of complaint Smt. Barfa Devi. Ambika had two sons, Jhanna and Lavkush. THE accused-appellant Jai Prakash and other accused Prem, who had absconded, were the sons of Jhanna. Deceased Lavkush had three sons Janardan, Shatrughan and Asthadev. Janardan was employed in Jamshed Nagar while Shatrughan was employed in Airlines at Nasik. Asthadev was residing with Lavkush and Barfa Devi in village Malpar, P. S. Chiliha, District Siddhartha nagar. About 14-15 years before the occurrence of this case Chandrika, who was issueless, executed a will-deed of his property in favour of the three sons of Lavkush (deceased ). A litigation followed, in which the accused Jai Prakash was unsuccessful. It happened about 11 years before the occurrence. Jai Prakash, after losing the case outwardly did not Exhibit any enmity but in his heart he was nursing grudge with the family of Lavkush. In the month of February, 1989, Jai Prakash murdered Shatrughan, the son of the complainant Smt. Barfa Devi and the deceased Lavkush. From then, Jai Prakash was absconding and murder case was pending against him. In the intervening night of 8/9-8-1989 P. W. 1 Smt. Barfa Devi and Lavkush were sleeping on the roof of their house. A lighted lantern was kept there. The deceased Lavkush was sleeping on a cot which was about of 1 ft. high while P. W. 1 Barfa Devi was sleeping on the floor of the roof. Both the sons of Barfa Devi were at Jamshedpur and no other family member was there. The houses of Akshaibar and P. W. 2 Parmatma and P. W. 3 Tara were in the west and north of the house of Barfa Devi. Western house was 'kachcha' while northern house was pucca. On the terrace of the northern house, P. W. 2 Parmatma and P. W. 3 Tara were sleeping. In the east of the house of complaint Barfa Devi, there was house of Rajendra but the roof of this house was of 'khaprail'. The distance between the roof of northern house of P. W. 2 Parmatma and P. W. 3 Tara was about 3 ft. The distance between the roof of Rajendra and Barfa Devi was a bit less. At about 3 a. m. Barfa Devi, feeling that some persons had arrived on the roof, woke up and raised an alarm. She saw the accused Jai Prakash and his brother Prem Kumar standing there, having a country- made pistol in their hands. On the cry of Barfa Devi they shouted that the old lady should be killed. Thereafter the appellants Jai Prakash and his brother Prem fired four or five shots from their country made pistols upon Lavkush. Thereafter, Jai Prakash went upto 4-5 paces, returned again and fired a shot from his country made pistol upon Lavkush. Lavkush died then and there. The appellant Jai Prakash and his brother Prem went through the roof and the staircase of the house of Akshaibar. Before leaving the place of occurrence the appellants and his brother threatened Barfa Devi that they would not spare her sons alive. P. W. 4 Rishidev was sleeping on the terrace of his house. Accused appellant and Prem also threatened him that in case he would come forward for the help, he would also meet the same fate.
(3.) SMT. Barfa Devi called P. W. 4 Rishidev from his house after half-an-hour and got prepared report Ext. Ka-1 at her house. Leaving the dead-body at the place of occurrence, on the roof, Barfa Devi, along with chowkidar Hussaini, went to the police station and lodged the report on 9-8-1989 at 6. 45 a. m. The distance of the police station from the place of occurrence was about 6 km. P. W. 5 Countable K. P. Misra recorded the chick report Ext. Ka-2, and made the entry in the GD on 9-8-1989 at 6. 45 a. m. copies of which is Ext. Ka-3. P. W. 6, Nagesh Pratap Singh the investigating officer, took up the investigation and reached the place of occurrence at 7. 50 a. m. and he prepared the inquest report and necessary papers for sending the dead-body of post-mortem examination. He prepared the site-plan. He took blood stained clothes and also 41 pellets which were found on the cot and prepared the memos. One lantern, which was lit in the night of the occurrence, was also inspected by the Investigating Officer and he found it in working order. He prepared the memo and gave lantern in the supurdgi of Barfa Devi. The Investigating Officer recorded the statement of Barfa Devi and Rishidev. Tara and Parmatma were interrogated on 10-8-1989. The accused-appellant Jai Prakash was absconding. His moveable property was under attachment. The investigating officer obtained the orders for the sale of the property of Jai Prakash, the appellant. On 22-8-1987. Jai Prakash accused-appellant surrendered in the Court and he was interrogated by the Investigating Officer on 8-9-1989. Post-mortem examination on the dead-body of Lavkush (deceased) was conducted by Dr. K. N. Pandey on 10-8-1989 at 4 p. m. The genuineness and correctness of the post-mortem report was admitted by the appellant before the trial Court.;