- (1.) R. N. Misra, J. This appeal has been preferred by the State of Uttar Pradesh against the judgment and order dated 1-3- 1988, passed by Sri H. S. Sharma, the then IInd Additional Sessions Judge, Etawah in Sessions Trial No. 48 of 1987, by which the respondents were acquitted of the charges levelled against them for the offences, punishable under Sections 302/449, I. P. C.
(2.) THIS may be pointed out here that one of the respondents namely Dularey Lal has died and the case against him stood abated as is evident from the order-sheet dated 26-7-2006. The facts giving rise to this appeal are as under : According to the prosecution case, the complainant-informant, Udai Narain and the accused respondents were residents of village Purwa Peetaram, Police Station Bidhuna, District Etawah. There was enmity between the parties including deceased Phool Singh. The accused respondent Kamlesh Kumar wanted to purchase a land, which was purchased by deceased Phool Singh and that gave rise to bad blood between them. On 17-9-1986, at about 8. 30 p. m. , the deceased Phool Singh was sitting in his house alongwith the complainant-informant, Udai Narain, Ram Bharosey, Chhotey Lal and ladies of the family and were talking about domestic affairs. In the meantime, the accused respondents Dularey Lal, Hakim Singh, Jawahar Lal and Kamlesh Kumar entered the house. Dularey Lal had a country made pistol, Hakim Singh had a spear and Kamlesh Kumar and Jawahar Lal had Lathis in their hands. Dularey Lal exhorted his associates to kill the deceased Phool Singh. He also threatened that if any one will come in the way, he shall be shot dead by him. The deceased Phool Singh came forward and other family members present there raised alarms and the witnesses Daya Ram and Ram Prasad and other reached there. In the meantime, the accused-respondent Hakim Singh pierced the spear (Bhala) in the chest of Phool Singh, who sustained injury and fell down. The accused persons ran away from there. The complainant-informant Udai Narain and other family members put the injured on a cot and proceeded for medical aid. As soon as they reached near the school of their village, they found the injured dead. The dead-body was left there and the complainant- informant proceeded to Police Station Bidhuna, District Etawah. He lodged the report Ext. Ka-1 there. The police registered the case at Crime No. 169 of 1986, under Sections 302/449, I. P. C. , which is evident from Chik Ext. Ka-4. The Sub-Inspector Radhey Shyam Verma investigated the case. During investigation, he visited the spot and prepared site plan Ext. Ka-6 and Ext. Ka-7. He took blood stained and simple mud from the place of occurrence and prepared memo Ext. Ka-7. He also took Angauchha of the deceased which was blood stained and prepared memo Ext. Ka-8. The accused Kamlesh was arrested by him and on his pointing out, the spear was recovered from the Chhappar of respondent Hakim Singh. The memo Ext. Ka-10 was prepared. The recovered articles were deposited in the Malkhana. The houses of the accused persons were searched by the Investigating Officer and the search memo is Ext. Ka-9. The dead-body of the deceased was inspected by the Investigating Officer and the inquest memo Ext. Ka-5 was prepared by him. The challan of the dead-body is Ext. Ka-15 and photo Ext. Ka-16. The letter to Chief Medical Officer, written by the Investigating Officer is Ext. Ka-13. The dead-body was sealed and sent for post-mortem examination. Dr. S. C. Dubey conducted the post-mortem examination. His report is Ext. Ka-2. The Investigating Officer interrogated the prosecution witnesses and after completing the investigation, he submitted charge- sheet Ext. Ka-12 against the accused persons.
(3.) THE accused persons had denied the allegations levelled against them and have made their false implication due to enmity. THE accused Dularey Lal has stated that in the year 1982, there was Gram Sabha election, in which he was also a candidate. THEre were six other candidates including the complainant-informant, Udai Narain and the both were defeated. THE deceased Phool Singh was a drunkard and gambler and probably, he was killed near the school in the night by someone else. No incident took place at the house of the deceased as alleged by the prosecution. His dead-body was found near the school. THEre was parti-bandi in the village, therefore, the witnesses deposed against him. THE accused respondent Hakim Singh has stated that in the year 1972, Dularey Lal had lodged a report against 25 or 26 persons including prosecution witnesses, Daya Ram, under Sections 147, 148, 427, 436 and 307, I. P. C. at Police Station Bidhuna, District Etawah. THEy were prosecuted and due to that enmity, this false accusation has been made against them. THE other accused persons have also adopted the same defence. THEy have examined Ram Singh, DW-1 in their defence. THEy have filed copy of F. I. R. lodged in the year 1972, which is Ext. Kha-2. THE copy of G. D. dated 19-11- 1987 has also been filed by them which is Ext. Kha-1. The accused-respondent Hakim Singh has been charged under Sections 302/449, I. P. C. and the remaining respondents have been charged under Section 302 read with Sections 34 and 449, I. P. C.;