K. S. Rakhra, J. - (1.) -This is an appeal against the judgment and order dated 19.2.1981 passed by the VIIIth Additional Sessions Judge (Non-Metropolitan Area), Kanpur in Sessions Trial No. 208/1979 convicting the appellant Durga Prasad and sentencing him to life imprisonment under Section 302, I.P.C., 7 years imprisonment under Section 307/149, I.P.C., two years imprisonment under Section 148, I.P.C. and one year imprisonment under Section 323/149, I.P.C., appellant Arvind Kumar two years imprisonment under Section 148, 7 years imprisonment under Section 307, I.P.C. life imprisonment under Section 302/149, I.P.C. and one year imprisonment under Section 323 read with Section 149, I.P.C. The remaining 8 appellants namely, Ram Sewak, Sajivan, Ashok Kumar, Jai Prakash, Babu Lal, Jawahar son of Moti Lal, Sidh Nath and Ram Narain have been sentenced to life imprisonment under Section 302/149, 7 years imprisonment under Section 307/149, I.P.C., one year imprisonment under Section 323/149, I.P.C. and one year imprisonment under Section 147, I.P.C.
(2.) DURING pendency of this appeal, four of the appellants namely, the appellant Durga Prasad, Ram Sewak, Sajivan and Ashok Kumar have died and, therefore, their appeal has abated. The factual matrix of the prosecution case is that on 2.10.1977, at about sunset, Daya Shanker informant his brother Laxmi Shanker alongwith Baikunth alias Thullu, Devi Shanker, Devi Prasad and Jagdamba, were returning to their village Devpalpur after witnessing a wrestling competition (dangal) at village Gadewa. When they reached near a pond known as 'kadarwa talab', the 10 appellants named above, who were laying in ambush and were armed with lathis except Durga Prasad who was armed with a gun and Arun who was armed with a country made pistol, came out and started wielding lathis on informant and his party and the latter also used lathis in their defence. The appellant Ram Narain gave a lathi blow to Laxmi Shanker who tried to run away towards his village but Durga Prasad who was standing in front of him, opened fire whereupon, Laxmi Shanker received injury and fell to the ground. Jagdamba of the party of the informant, somehow, succeeded in snatching away the gun from the appellant Durga Prasad. Appellant Arun Kumar then aimed his pistol on Jagdamba whereupon, the latter took to his heels and ran away to the village alongwith the gun of Durga Prasad. Arun Kumar, however, opened fire on him from the backside causing firearm injury on the leg of Jagdamba but despite the injury, he succeeded in reaching his village. All this was witnessed by Laxmi Kant P.W. 3, besides Ayodhya Prasad, Rama Kant etc. When the witnesses started collecting. Durga Prasad and his party ran away. The incident took place within the circle of police station Shivali at Kanpur district. In this incident, Laxmi Shanker the deceased and Jagdamba P.W. 2 had received firearm injuries whereas, informant Daya Shanker P.W. 1 and Devi Shanker had received lathi injuries. Jagdamba and Laxmi Shanker were rushed by the informant and others to Hallet Hospital also known as L.L.R.M. Hospital at district Headquarter of Kanpur where, Laxmi Shanker breathed his last.
(3.) THE prosecution further claims that the informant Daya Shanker tried to lodge F.I.R. about this crime at police station Swaroop Nagar of district Kanpur which was close by Hallet Hospital but the police refused to entertain his report and directed him to lodge the same at police station Shivali within whose jurisdiction, the crime had been committed. THE F.I.R. of the incident thereafter, was lodged in the night of 2/3.10.1977 at 1.30 a.m. at police station Shivali and was registered as crime No. 250-A/1977 and all the appellants were named in the report. Admittedly, prior to the registration of the report of Daya Shanker, another case was registered as crime No. 250/1977 on the report lodged by the appellant Sajivan Lal scribed by the appellant Arun Kumar against 8 persons including Daya Shanker and his party men Baikunth, village Pradhan Mahavir, Up-Pradhan Shiv Kumar etc. That F.I.R. was registered under Section 302, I.P.C. at 11.30 p.m. on 2.10.1977. Sajivan Lal had alleged that Daya Shanker and others had assaulted him and his party whereupon, he and his companion Durga Prasad had received serious injuries while another companion Manni Lal was killed. THE date and time of the incident alleged by Sajivan Lal was also 2.10.1977 at 7.30 p.m. Since report of Sajivan Lal had already been registered and date and time of both the incidents, i.e., one lodged by Sajivan Lal and the other by the informant of the present case Daya Shanker, was almost the same, the police registered report of Daya Shanker as the crime No. 250-A/1977. The motive for commission of crime, alleged by the prosecution, was that the deceased Laxmi Shanker was a recovery witness in a case registered against the appellant Ram Narain and Durga Prasad at police station Swaroop Nagar, Kanpur, wherein the police had shown recovery of some stolen property from their houses. These two appellants were persuading and pressurising Laxmi Shanker to file an affidavit to the effect that said recovery was made not from their house but was made from a 'ghoora' outside the house. The deceased Laxmi Shanker did not accede to their request which became the immediate motive for commission of this crime.;