Kundan Singh, J. - (1.) This appeal has been preferred by the State of U.P. against a judgment and order dated 20.8.1980, passed by Sri K.C. Sinha, III additional Sessions Judge Gorakhpur, whereby he acquitted the accused respondents of the charge under Sections 302, 302/34, 307/34, 324/34 and 394, Indian Penal Code.
(2.) The facts leading to this appeal are that Vinay Kumar Shahi and Shailendra Pratap Shahi alias Munna Singh were residents of village Belghat, police station Belghat district Gorakhpur. There was old enmity between their families and at the time of incident they were litigating a criminal case which Shailendra Pratap Shahi got instituted through his servant Ramdhari under Section 392/411 Indian Penal Code at Gorakhpur against Nagendra Pratap Shahi and Dhirendra Pratap Shahi father and uncle of Vinay Kumar, respectively and their servant Ratan Yadav and Ganesh. In that case 28.7.78 was the date fixed at Gorakhpur for appearance of the accused. Dhirendra Pratap, Ratan and Ganesh had gone to attend the court on 28.7.78 and in the night they all stayed at Gorakhpur in order to settle some account of Theka of Supaighat. Lalloo Prasad Gupta had also accompanied them. On 29.7.78 the entire party alongwith Vinay Kumar Nephew of Dhirendra Pratap Shahi, left Gorakhpur at about 8.30 a.m. to village Belghat by a Jeep Taxi (No. UTA 2081). In that Taxi four other persons were also travelling with them which was being driven, by one Sita Ram. Dhirendra Pratap Shahi was sitting on the extreme right, thereafter Lalloo Prasad Gupta, then Rajdeo and thereafter Sita Ram driver in the front row of the Jeep, while others were on rear seats. The Taxi dropped two persons after the crossing of Katghar School. At about 9.00 A.M. when they crossed the bridge of Jamura Nala one jeep of black colour came from the opposite direction and stood up across in the road. Shailendra Pratap Shahi and Arvind Kumar, who where carrying guns got down from that Jeep. They came forward to the Jeep on which the complainant party was on board. Shailendra Pratap and Arvind Kumar took position on western and eastern sides of the Taxi and both of them opened fires on the complainant party which caused injuries to Dhirendra Pratap. Lalloo Prasad Gupta, Rajdeo and Sita Ram, who were sitting in the front row. Surendra Pratap Chandra and Kaushlendra Shahi who were also having guns, also got down from their jeep and stood up by the side of their vehicle. Shailendra Pratap took away the gun and the belt of cartridges of Dhirendra Pratap Shahi. The in formant and other occupants of the taxi could not intervene due to fear. The informant brought the injured persons to Police Station Khajni where he lodged an F.I.R. at 9.30 a.m. on 29.7.78. Nannoo Ram, Station Officer, police station Khajni (P.W. 12), took up investigation in his hand. Considering the physical condition of Dhirendra Pratap, Lalloo Prasad Gupta and Sita Ram as precarious, he sent them to district Hospital for medical examination and treatment, while Rajdeo was sent to Khajni hospital for his treatment. The Investigating officer took flesh into his possession from the Jeep and also recorded statement of Vinay Kumar under Section 161 Criminal Procedure Code Vinay Kumar also handed over licence of the gun of Dhirendra Pratap to the Investigating Officer. The statement of Ganesh and Ratan were also recorded by the Investigating Officer at the police station. Thereafter he proceeded to the scene of occurrence taking Vinay Kumar in his company. On reaching the spot, he inspected the place of occurrence, prepared site plan also recovered four discharged cartridges from the venue and prepared recovery memo. He then tried to search out the assailants but none of them was available. Thereafter he returned to the police station where Constable, who accompanied the injured to district Hospital, informed the investigating Officer that Dhirendra Pratap and Lalloo Prasad Gupta have died. On that information the case was converted into one under Section 302 Indian Penal Code.
(3.) Sita Ram was examined by Dr. K.K. Mal (P. W.11) at 10.25 in the District Hospital and he found 3 lacerated wounds on his person. In his opinion, the injuries were fresh in duration and were caused by some firearm. However, his injuries were kept under observation and he advised X-ray. The injuries of Rajdeo were examined by Dr. Purshottam Tewari (P.W.5) Khajni Hospital at 10.20 A.M. who found two lacerated wounds and one abrasion on his body. The Investigating Officer requested the Doctor to tell him as to whether the injuries found on the person of Rajdeo were of firearm and the Doctor in his supplementary report opined that injury No. 2 of Rajdeo was possible caused by some fire arm. The Investigating Officer recorded statements of other witnesses on different dates.;