- (1.) SUSHIL Harkauli, J. The four appellants herein were tried and convicted under section 302 read with section 34 IPC by the IIIrd. Additional Sessions Judge, Fatehpur, by Judgment dated 19. 9. 1985 in Sessions Trial No. 79 of 1984 and were sentenced to undergo rigorous imprisonment for life. The case of the prosecution is that on the morning of 28. 9. 1983 the Shiv Shanker (hereinafter referred as the deceased) had gone with one Uma Shanker and Ram Asrey of his village to ease himself at a nearby pond and while coming back from there, at about 6. 30 a. m. , at a place located about 40 paces from his house, the deceased was stopped by the accused, out of whom Hari Shanker was armed with his licensed gun and each of the remaining 3 accused was armed with country made pistols. Accused Hari Shanker fired upon the deceased with his licensed gun. The shot struck the deceased on the wrist of his right hand. The deceased tried to run away from the spot but was caught from waist by accused Ram Bharosey. Accused Vijai Shanker told Ram Bharosey to release the deceased and after release of the deceased by Ram Bharosey, the accused Vijai Shanker also fired. Shiv Shanker fell down whereupon remaining two accused also fired on him. The deceased Shiv Shanker died. Upon hearing the sound of firing, the complainant Amar Nath Mishra, father of the deceased, Girja Shanker, brother of the deceased and one Ram Ratan Yadav of the village reached the spot where they saw the accused running away saying that they had avenged (the murder of) their brother. The motive for the murder set up by the prosecution is that there was a dacoity with murder in the house of the accused Vijai Shanker in which the brother of accused Vijai Shanker had been murdered. In that incident complainant Amar Nath, deceased Shiv Shanker and three other persons are said to have been named as accused. Because of that incident the present accused are said to have been harbouring grudge, due to which they committed the offence in question.
(2.) THE FIR in the present case was registered under section 302 IPC at 11. 45 a. m. on the same day at P. S. Ghazipur, vide serial No. 19 of the General Diary. A written FIR had been submitted by the complainant, which is Ext. ka-1 and the chick FIR is Ext. ka-4. THE G. D. entry No. 19 is Ext. ka-5. THE case was investigated by S. I. Surya Kunwar Singh (P. W. 5) who visited the spot, prepared inquest report (Ext. ka-7) of the dead body, diagram and challan of the body. Site plan and other documents were also prepared. Blood stained and unstained earth sample was taken Shoes and chappals found scattered near the dead body with empty cartridges were collected. At the trial the prosecution examined informant Amar Nath, as P. W. 1, Uma Shanker, as P. W. 2, Dr. D. N. Giri, who conducted post-mortem, as P. W. 3, Head Constable Vidhya Sagar Mishra as P. W. 4, the first I. O. as P. W. 5 and the second I. O. as P. W. 6. There is no defence evidence. We have heard both sides at length. From the side of the appellants a defence theory has been suggested that the deceased had gone to ease himself much earlier, when it was dark. He was shot at by some unknown assailants and the incident was not witnessed by any body. Support for such theory is sought from the following facts. (i) The two eye-witness namely Amar Nath and Uma Shanker, the first of whom is the witness who alleges to have seen the accused running away and the second Uma Shanker who is alleged to have accompanied the deceased for toilet, are admittedly on inimical terms with the accused. (ii) Independent corroboration has not been attempted by the prosecution. The prosecution has failed to examine Ram Asrey, who is alleged to have accompanied the deceased (along with P. W. 2 Uma Shanker) to the toilet, Girja Shanker the brother of the deceased and Ram Ratan Yadav who are alleged to have been with P. W. I at the time when P. W. I alleged to have seen the assailants running away, immediately after the incident. It is alleged that there is Harijan Basti very close to the place of incident and that Harijan Basti being is occupied, yet no person from that Harijan Basti has been produced as witness and thus there is no independent corroboration of testimony of two inimical witnesses, although independent corroboration was possible and there is no cogent explanation from the prosecution side for not producing independent corroborative witnesses. (iii) It has been suggested that witness Uma Shanker was not present in the village on the date of incident and his name was incorporated in the FIR, after legal consultation, in the hope that because of enmity he would support the case against the accused. A suggestion has been made to this effect in the cross-examination of Uma Shanker. This theory is sought to be supported by the fact that though the FIR was lodged on 28. 9. 1983 but the statement of Uma Shanker (P. W. 2) under section 161,cr. P. C. was not recorded by the Investigating Officer, although he had been named in the FIR as a star witness, till 21. 10. 1983. The explanation for this delay given in the evidence is that Uma Shanker (P. W. 2) had gone out of station and his statement could be recorded by the I. O. only after his return. However, there is no explanation as to what was the reason for Uma Shanker to go out of station and remain out of station for such a long time. The exact date when he went out of station and when he returned back were also not mentioned.
(3.) SO far as informant Amar Nath (P. W. I) is concerned, it has been suggested on behalf of the appellant that he had admittedly reached the police station at around half past eight but the FIR was not lodged till 11. 45 a. m. There is an explanation by the informant in his evidence for this delay. He says that he had reached the police station with the written FIR at about half past eight, but the police kept him waiting for about three hours before registering his FIR. However, Ext-ka-17 is a G. D. Entry No. 17 of that very police station which is of that very day i. e. 28. 9. 1983 at 8. 55 a. m. which is on record and which says that at that time informant Amar Nath along with Lok Nath (Pradhan of the Village) and other villagers viz. , Gaya Prasad, Ram Vishal, Rarn Asrey and Chandra Shekhar had come to die police station and informed that at 6 - 61/2 O'clock his son Shiv Shanker had been murdered by Hari Shanker with his licensed gun and by Ram Bharosey with country made pistol. The other two accused are not named in the said G. D. ' Entry and the G. D. Entry also says that the informant had said that he would not lodge the FIR till his nephew Ravi Shanker who was a clerk in the Civil Court, Fatehpur comes back after consulting lawyers in Fatehpur. During the course of cross-examination, the first informant was confronted with the said G. D. entry and he denied having said any such thing. However, we are unable to disbelieve the G. D. entry because it does not merely talk of information given by the informant, but says that the informant was accompanied by the Village Pradhan Lok Nath and the villagers Gaya Prasad, Ram Vishal, Chandra Shekhar and Rarn Asrey. We do not think it probable that all these independent persons including Pradhan of the Village would have been baselessly referred to as accompanying the informant when the informant came to the police station and gave such information about a serious happening like murder of his son alongwith names of the accused.;