- (1.) S. I. Jafri, J.
(2.) APPELLANTS Rajendra Yadav and Rajman Lobar were convicted under section 302 and 302 read with Section 34 IPC and were sentenced to undergo life imprisonment. Rajendra Yadav was convicted under section 302 IPC simpliciter for the murder of Shitla deceased and was sentenced to undergo life imprisonment and he was further convicted under section 302/34 IPC for the murder of Lallan deceased and sentenced to life Imprisonment. The appellant Rajman was convicted under section 302 IPC for the murder of Lallan and sentenced to undergo life imprisonment. He was further convicted under section 302 read with section 34 IPC for the murder of Hira Lal deceased and sentenced to imprisonment for life. Co-accused Krishna Nand Rai and Dinesh Kumar were also prosecuted alongwith the aforesaid appellants on the charge under section 302 read with section 34 IPC but they were acquitted by the trial Court. The case against them relates to an occurrence which had taken place at about 9.30 a. m. on 21.-7-74 near the Lanka crossing within the limits of P. S. Bhelupur district Varanasi in which three persons, namely, Hira Lal, Lallan Kunbi and Shitla Prasad had lost their lives. According to the prosecution story, appellant Rajendra is the cousin of Shobhnath. It was alleged that a theft was committed at the house of Shobhnath about 20 or 22 days prior to the occurrence and appellant Rajendra had complained to Durga Prasad Yadav, complainant that the theft at the house of his cousin Shobhnath was committed by his brother Shitla Prasad and his colleagues Hira and Lallan. Durga Prasad enquired from his brother Shitla Prasad about the theft but he denied that he had committed the theft at the house of Shobhnath and the complainant had conveyed this denial in the evening preceding the date of the occurrence to the appellant Rajendra. It is further said while the information was conveyed to the appellant Rajendra by the complainant Durga Prasad Yadav, the appellant Rajman who also was present there had told Rajendra that "Unke chakkar men kyun pare ho humlog apney dhang se nipat lenge. " On the following day at about 9.30 a. m. i.e., on 27-7-74 when Durga Prasad was going to a barber shop near Kanka crossing for heir cutting, he heard the sound of firing from the side of 'Asha Tanakan Vidyalaya' and then he saw appellant Rajendra armed with a double barrel gun along with the appellant Rajman, Krishna Nand Rai and Ganesh Kumar standing in front of 'Asha Tankan Vidyalya' and at that time he had also seen the deceased Hira Lal lying on the Patri and then, he noticed the appellant Rajendra firing two shots on Hira deceased and on the instigation of accused Ganesh Kumar to kill Lallan and Shitla Prasad who were also standing near Hira, the appellant Rajendra also fired on Shitla who also fell down on receiving the gun shot injury and, hereafter, the accused Krishna Nand Rai and Dinesh had exhorted to kill Lallan Kunbi also who was requesting them with folded hands to forgive him and, thereupon, appellant Rajman after taking the double barrel gun from the hands of Rajendra fired at Lallan Kunbi who also fell down after being hit by the gun fire. Thereafter, all the appellants had run away towards west. Durga Prasad, then, went near the place where Hira, Lallan Kunbi and Shitla Prasad had fallen on the ground after receiving the gun shot injuries and he found Lallan and Hira dead. But his brother Shitla Prasad was, then, alive who was groaning with pain. The complainant proceeded towards Banaras Hindu University Hospital along with Shitla injured and after meeting other members of his family on the way to Benaras Hindu University Hospital, the complainant stopped on the way and his family members had carried Shitla to the B.H.U. Hospital. The complainant then prepared the written report of the occurrence and went to the Police Station Bhelupur which is two miles away from the spot and lodged his report at 1.0.40 a, m. the same day. Shitla Prasad, injared also succumbed to his injuries subsequently in the hospital the same day.
(3.) AFTER registration of the case at the Police Station Bhelupur, Jagdish Tewari PW 10 took up the investigation of the case in his own hands and he visited the scene of occurrence alongwith police force and he found the dead bodies of Hira, Lallan on the spot. Chhotey Lal PW 4 S. I. had prepared the inquest report on the dead body of Hira and Lallan and sent them for post mortem examination through constables Bhagwat Prasad PW 6 and Ram Naresh Misra PW 9. The Investigating Officer had recorded the statements of Tulsi Yadav, Shobhnath Gaur and Sankatha Prasad on the same day. He also prepared the site plan Ex. ka8. He found blood stained earth on the spot and took it into his possession. He made the spot inspection and found fired cartridges marked Ext. 3 to 6. Three tiklies Ex. 7 to 9 were also found there. He had also prepared recovery memo Ex. ka 3 and sealed them in separate packets. He interrogated Babu Lal and Lallu, PW 3 on 22-7-74. All the accused were arrested on 22-7-74 by the S. I. Bhullan Ram and others and they were taken to the police station Bhelupur at 12.30 p. m. as per Gene al Diary entry, a copy of the same is Ex. ka 14-A. 12 bore double barrel gun Ex. 10 and 4 cartridges were recovered by S. I. Jagdish Singh, PW 5 from Sidhraj Singh, son of Kallu Singh of village Narottampur and they were sealed in separate packets. The S. I. had prepared the recovery memo which is Ex. ka 4. The sealed packets containing gun and cartridges were deposited at the police station Bhelupur by Jagdish Singh, PW 5 on 22-7-74 at 1.05 p. m. During the Investigation gun Ex. 10 along with empty cartridges Ex. 3 to 6 which were found on the spot were sent by the Investigating Officer to the Ballastic Expert for his opinion. Radhey Shyam Misra, PW 11 Ballastic expert opined vide his report Ex. ka 10 that the empty cartridges Exts. 3 to 6 were fired from the double barrel gun no. 3656-D i.e., Ex. 10. AFTER completing the investigation the charge sheet was filed against all the appellants including Kallu Singh of village Narrottampur by the investigating officer. Dr. B, N. Chakravarty PW 7 conducted the post mortem examination of Hira at 2 p. m. on 22-7-74. He found the following ante mortem injuries on his person :- 1. Gun shot injury 3 cm in diameter circular in shape, chest cavity deep with blackening of margins which is in dirven and laceration of the underlying muscles on the back of chest just of the right of the mid line. 2. A gun shot injury oval in shape 4 cm x 3 cm by chest cavity deep with blackening of margins which is in driven on the back of the lower part of the chest just to the left of the mid line. 3. Multiple small circular gun shot wound (charras) on an area of 27 cm x 16 cm on the back of the chest. 4. Lacerated wound 4 1/4" x 4 1/2" x muscle deep, margin of the wound blackened and averted at places at the back of the arm 6 cm above the elbow. ;