- (1.) The appellant-Harish Chandra Pandey has preferred this criminal appeal against the judgment and order dated 29.07.1983 passed by Sessions Judge, Basti in S.T. No. 108 of 1982 under Section 302/34 IPC, whereby he has been convicted under Section 302 IPC and sentenced to undergo life imprisonment and the other co-accused persons namely Komal Yadav and Parmanand Pandey have been acquitted giving benefit of doubt.
(2.) The prosecution story hings on the facts that on 20.1.1982, the first informant-Sri Niwas (PW-1), brother of deceased gave a written information (Ex Ka-1) at the police station, Lalganj district Basti by saying that he is resident of village Barware, police station, Lalganj district, Basti; that there was some dispute between Ram Niwas Pandey and Jag Mohan Pandey of the village in respect of the property left by Ram Samujh Pandey, in which, his brother- Tulsi Ram Misra (deceased) used to support Ram Niwas Pandey, due to which accused Harish Chandra Pandey son of Jag Mohan Pandey had grudge against him; that it was also asserted that 'bhabhi' of Komal Yadav son of Bhikhari of neighboring village- Sukrauli had sold her land to the first informant and his brothers in respect of which a civil litigation was pending in the Civil Court; that on 20-1-1982 his brother,Tulsi Ram Mishra was going for pairavi in that case; that Kailash son of Kalp Nath and Sita Ram(PW-3) both of his village were also accompanying him and when his brother reached in the grove of Onkar Upadhyay situated near Gaura ghat at about 7.30 AM, the appellant- Harish Chandra Pandey son of Jag Mohan Pandey and the co-accused Komal Yadav son of Bhikhari Yadav resident of village- Sukrauli and another person whom he did not know by name arrived on a motor cycle; that Komal Yadav and unknown persons exhorted Harish Chand Pandey to kill his brother and soon thereafter, Harish Chandra Pandey, opened two fires on him by his DBBL gun, the deceased- Tulsi Ram sustained injuries on his neck and right side of axilla; and succumbed on the spot to the injuries sustained; that on some hue and cry, Paras Nath son of Shiv Baran Pandey of village Ketaha and Ram Shanker son of Suryamani of village Sapha came on the spot; that all these persons tried to catch the accused persons but they ran away therefrom on their motor cycle. On the basis of written information, an first information report (Ex-Ka-5) was registered against the accused persons under sections 302 IPC. The investigation was entrusted to Ram Nath Singh Yadav- S.O.(PW-9) , who visited the spot on the same day and prepared site plan; he also recovered empty cartridges, blood stained and plain earth, blood stained clothes and janewoo of the deceased along with money and prepared memo (Ex-Ka-12, 13,14 and 15) respectively. Inquest report ( Ex-Ka-8) of the dead body was also conducted. Thereafter, the dead body was sealed and sent for post mortem examination through Constable Ram Kesh and Constable Shambhu Nath Singh. Specimen seal, memo supurdagi Lash, photo Lash, letter to CMO were also prepared and handed over to the aforesaid Constables. Autopsy of the deceased-Tulsi Ram was conducted on 21.1.1982 by Dr. G.M. Lal (PW-2). He found following ante mortem injuries on the dead body of the deceased; 1- Fire arm injuries 9 cm x 6 cm x chest cavity deep -3 cm below the right scapula. Margins were ragged. The edges around the margins were scorched but no blackening was present. Wadding material was recovered from this wound of entry. 2- Fire arm injuries 8 cm x 4 cm x axilla deep on the right side of the chest. Charring was present on the edges of the wound but no blackening was present. Wadding material and pellets were recovered from this wound of entry. 3- Fire arm injury 1 cm x 1 cm on the left side of neck-5 cm below the ear lobule. The margins were charred and red but no blackening was found . One big pellet was recovered from the other side of the neck. 4- Fire arm injury .5 cm x.5 cm on the left wrist. 7th and 8th ribs were found fractured on the right side due to injury no.1. Lungs were also found lacerated. The carotid vessels on the left side were lacerated. In the stomach semi digested food was found. Small and large intestines were found empty. It was opined by the doctor that the death occurred due to shock and haemorrhage due to ante mortem injuries.
(3.) During investigation name of Parmanand Pandey also came in to light and was arrested. In identification parade, conducted by Special Executive Magistrate C.P. Srivastava PW-4 he was identified.;