K.K.Misra, J. - (1.) THIS criminal appeal has been filed against the judgment and order dated 31.3.1981, passed by Sri V. N. Pandey, the then VIth Additional Sessions Judge, Lucknow in Session Trial No. 117 of 1979, whereby he has convicted the appellants-Santosh Kumar Srivastava, Sachidanand alias Nanha, Ramesh Chandra (Ramesh Kumar) alias Lalla under Section 302/34, I.P.C. and sentenced them to imprisonment for life.
(2.) THE facts narrated in the written report (Ext. Ka-1) are that on 22.5.1975 complainant Madho Shyam Shukla's brother-in-law Ajay Kumar R/o village Khande Deo, P.S. Banthra, district Lucknow was murdered by accused Santosh Kumar Srivastava and Sachidanand, who are also resident of village-Khande Deo, P. S. Banthra, district Lucknow and that case was being tried in Court at the time of occurrence in the present case. It was alleged that on 12/13.2.1979 was the date fixed in that case. THE case was adjourned to 21.2.1979. Complainant Madho Shyam Shukla (P.W. 1) and his friends Suresh Pandey (deceased), Ram Chandra Misra and Bilas Modhey (P.W. 3) were doing pairvi from the side of the deceased Ajay Kumar while accused Ramesh Kumar alias Lalla and others were doing pairvi from the side of the accused Santosh Kumar and Sachidanand and they were threatening the complainant, pairokar and witnesses not to do pairvi so that the accused may be acquitted. On 12.2.1979, the date fixed in the case, the accused had threatened the complainant and his friend in presence of the witnesses that if they would be seen in the Court on the next date, they would be killed. Despite this, the complainant etc. also came in the Court on 13.2.1979, when in the evening at the time of leaving the Court accused Santosh asked that the complainant etc. had not obeyed the accused and they would not get opportunity to see the next date fixed in the case. It was further alleged that with intent to take revenge due to the above reason, on 20.2.1979, the accused persons fired at the complainant and his companions near the Union Hall in Lucknow University to kill them but due to luck they escaped their lives by running away from the spot. It was further mentioned that on 22.2.1979 complainant Madho Shyam Shukla went to Lucknow University to enquire about his examination result ; that near the Union Hall he met his friend deceased Suresh Pandey, Bilas Modhey, Ram Chandra Misra and Ranjeet Bahadur Srivastava and they all went to the Registrar Office ; as there was crowd, they went to Examination Section but as the result could not be known they returned to their houses ; that at about 2 p.m. as soon as they reached outside the gate No. 1 at some distance all the above named persons came on Java (Yazdi) Motorcycle from the side of Union Hall ; the motorcycle was being driven by accused Sachidanand while accused Ramesh armed with a double barrel gun was sitting on the motorcycle behind accused Sachidanand and accused Santosh Kumar armed with a single barrel gun was sitting behind the accused-Ramesh ; when the complainant and his companions were at a distance of about 15-20 steps from outside gate No. 1 accused Sachidanand stopped the motorcycle ; accused-Ramesh and Santosh Kumar got down while accused-Sachidanand remained seated on the motorcycle ; they all started firing with revolver and guns on which complainant Madho Shyam Shukla and his companions ran towards Art Faculty inside the gate while deceased Suresh Pandey started running towards the Union Hall after getting down from the road towards east ; as there was crowd in the Art Faculty, the accused persons chased deceased Suresh Pandey frequently firing at him which hit on his arm, leg and chest etc. on which he fell down in a pit near the sports store ; the complainant and others returned back and raised the alarm on which several other students from all sides reached the spot and all the three accused persons fled away on the motorcycle towards Union Hall to the west ; that the number of the motorcycle could not be seen as a jacket was alleged to have been hanging on it. Thereafter, the injured Suresh Pandey was taken to Medical College in a car by Raj Kumar Jaiswal and others but he succumbed to his firearm injuries in the way. Complainant Madho Shyam Shukla wrote the written report (Ext. Ka-1) in the Art Faculty ; went to police station Hasanganj, where he submitted the written report on the basis of which the F.I.R. (Ext. Ka-10) was lodged as Crime No. 153 at about 14.45 the same day under Section 307, I.P.C. naming all the three accused persons at G.D. Report No. 35, true copy of which is Ext. Ka-11. After the death of Suresh Pandey, the case was converted into Section 302, I.P.C. from Section 307, I.P.C. an entry of which was made at G.D. Report No. 37 at about 15.05 the same day, true copy of which is Ext. Ka-12. The case was partly investigated by S. I. K. K. Singh who inspected the spot ; recorded the statements of the witnesses and conducted the panchayatnama on the dead body of Suresh Pandey sealed the dead body for post-mortem examination which was conducted by Dr. J. B. Saxena the same day at about 5.45 p.m. All the three accused persons surrendered in Court. Thereafter, the investigation was handed over to S.I. P. N. Pandey who after completing the investigation of the case, submitted charge-sheet (Ext. Ka-9) on 4.4.1979 against all the three accused persons.
(3.) THE case was committed to the Court of Sessions by C.J.M., Lucknow, vide order dated 17.5.1979. Learned Sessions Judge, Lucknow, vide order dated 22.6.1979 transferred the case to the Court of Additional Sessions Judge, Lucknow for trial. Being part-heard case of Sri V. N. Pandey, the then Vth, Additional Sessions Judge, Lucknow, the case was again transferred to the Court of VIth, Additional Sessions Judge, Lucknow, the Presiding Officer of which Court was now Sri V. N. Pandey. The accused persons denied all the prosecution allegations and stated to have been falsely implicated in the case due to enmity with the complainant, his friends as well as with deceased Suresh Pandey as they were all of one party ; accused Santosh and Sachidanand have further stated that the deceased himself was a notorious and pre-convict and he had enmity with many other persons and there were many cases pending against him at the time of his murder ; accused Sachidanand has stated that at the time and date of this occurrence, he was in his office Bhumi Vikas Bank at Mal Avenue Road, Lucknow where he was posted as Accountant while accused Ramesh Kumar has stated that he was also in his office Nagar Mahapalika, Lucknow, where he was posted as Clerk and his duty was from 10 a.m. to 5 p.m. and they did not commit the murder of Suresh Pandey. They have been charged under Section 302/34, I.P.C. to which they pleaded not guilty and claimed to be tried.;