M.C.JAIN, J. - (1.) SIX accused -respondents, namely, Laxmi, Durg Vijai, Ramayan, Brij Raj, Kishore and Amla were tried for the offence of rioting and murder of one Vidyapati Misra before 2nd Additional Sessions Judge, Deoria in S.T. No. 207 of 1995 and were acquitted by judgment and order dated 22 -12 -1997 impugned in this appeal filed by the State.
(2.) RESUME of the case as surfacing from the F.I.R. and evidence adduced before the trial Court may be put forth. The accused and the deceased Vidyapati Misra were residents of one Gaon Sabha of Village Kurmipatti Nauka Tola, Police Station Nebuanaurangiya, District Padrauna. The deceased and Laxmi. Accused were the members of the Gaon Sabha Laxmipur alias Kurmipatti. The Gaon Sabha had allotted some land to members of weaker sections and others including one Moti Dhobi. The accused Laxmi got sale - deed executed in his favour of the land allotted to Moti Dhobi. The sale -deed being illegal, the Gaon Sabha had instituted a suit in this behalf and pairvi was being done by the deceased on the basis of the resolution passed by the Gaon Sabha. It infuriated the accused Laxmi. He and his associates were on a look out for an opportunity to get rid of Vidyapati Misra from doing pairvi in that case on behalf of Gaon Sabha. On 27 -7 -1994 in the morning Vidyapati Misra had gone to Padrauna for some work. In the evening Sanjai Kumar Misra PW 1 son of the deceased (informant) and Thagai PW 2 (brother of deceased) had gone to the crossing. Meanwhile Vidyapati Misra also reached the crossing on his return journey from Padrauna at about 7.30 p.m. They started back journey to home on bicycles. Vidyapati Misra was on one cycle going ahead of Sanjai Kumar Misra and Thagai on another cycle. Thagai, sitting on carrier of the cycle plied by Sanjai Kumar, was flashing torch illuminating the path for Vidyapati Misra. At about 8.00 p.m. these three reached just ahead the grove of Pradhan near Lagunahi Tola when the accused persons emerged from the shrubs existing on both sides of the way. The accused Laxmi Yadav exhorted his remaining five fellow accused to kill Vidyapati Misra abusing him for doing pairvi in the case. Instantaneously, Laxmi Yadav himself fired from country made pistol on Vidyapati Misra and two accused Durg Vijai and Ramayan threw bombs on him which struck him on head and shoulder resulting his instantaneous death on the spot. Sanjai Kumar Misra and Thagai raised alarm but in vain. No witness approached the spot. Offering threats, the accused went away. They were allegedly identified by Sanjai Kumar Misra PW1 and Thagai PW 2 in the light of torch. The third witness Jagdish Shukla PW 3 (not named in the F.I.R.) was also examined. He was brother -in -law (Bahnoi) of Sanjai Kumar Misra. He claimed that he had gone to his Sasural on the fateful day and in the evening at about 6.00 p.m. he had gone to Kurmipatti crossing to take tea. He was returning from there. At about 8.00 p.m., he heard noise of bomb which stunned him. He claimed to have seen all the six accused respondents running towards east. He claimed to have identified them in the light of torch that he had. Reaching the place of explosion, he found his father -in -law to be lying dead and Sanjai Kumar Misra and Thagai to be there. Thagai told him about the incident of bomb explosion and shooting by country made pistol. For about half of an hour, he stayed at the spot and then went to his in -law's house where he remained the whole night consoling the members of the family of Vidyapati Misra.
(3.) AFTER the incident, Sanjai Kumar Misra PW 1 came to his house, leaving his uncle Thagai at the spot. He scribed the F.I.R. and along with Munsarim (Up -Pradhan of the Gaon Sabha) went to the Police Station where he lodged the same. A case was registered by head constable Ram Briksha Ram PW 6 on the basis of the F.I.R. lodged the same night at 11.30 p.m. by Sanjai Kumar Misra. The police came in action and investigation was taken up by S.O. Shyamrathi Arya PW 7 in whose presence the F.I.R. was lodged. He immediately came to the spot along with police personnel. There was no light arrangement. So leaving two constables near the dead body, he left for the arrest of the accused persons. The next morning he reached the spot and busied himself with activities related to investigation. The deceased's cycle was found to be there of which he prepared a Fard. From the spot he collected bloodstained and simple earth and also took in possession a lathi which the accused had left there. The statement of the witness Thagai, who was present, was also recorded by him. He inspected his torch and prepared a Fard of it also. The inquest report was prepared as also other necessary papers and after being sealed the dead body was sent for post -mortem through constable Ram Babu Awasthi PW 4 and Yamuna Pandey.;