P.K. Jain, J. - (1.) THESE three appeals arise out of the common judgment and order, dated 4.6.80 passed by the then Vth Additional Sessions Judge, Gorakhpur, convicting the Appellants Under Section 302 read with Section 34, I.P.C. in S.T. No. 190 of 1979 and sentencing each of them to rigorous imprisonment for life and a fine of Rs. 500 each and in default of payment of fine to undergo further rigorous imprisonment for six months.
(2.) APPELLANT Akhtar was reported to have died during the tendency of the appeal and the appeal on his behalf stood abated vide order, dated 13.3.97 passed by this Court. The prosecution case as contained in the first information report (Ex. Ka. -2) is that accused Akhtar Alam and Yahiya Khan had demanded Rs. 1,000 from the victim which the victim had refused to pay. Both of them had threatened the victim saying 'Tumhare Kagaz Poore Hain'. On 8.3.79 at about 4.00 p.m. accused Akhtar Alam and Yahiya Khan armed with guns and Ibrahim and Abdul Qauim armed with country -made pistols went to the house of the victim in village Oonti Tola Nikahwa, P.S. Shyam Deorawa, district Gorakhpur, along with Sadal Harijan whose hands were tied by the accused persons. The accused persons entered the house of the deceased and caught hold of him. They dragged the victim out of the house and took him towards village Barahara. The first informant, Om Prakash Pandey (son of the victim), his mother and the younger brother raised alarm which attracted witnesses Ramji, Prem, Ram Niwas Pandey and others. All the witnesses including the first informant followed the accused persons: In the meantime, the accused had taken the victim near the house of Sheo Ratan of village Barahara Ganjan where Akhtar Alam and Yahiya Khan fired one shot each upon the father of the first informant causing instantaneous death. The accused persons went away threatening the witnesses. Sadal Harijan had told the first informant and the witnesses that the accused had come to the house of one Ram Chandra Yadav and were taking some thing there. They had called him to supply liquor and when he refused to do so, he was assaulted with lathis and dandas. His hands were tied and he was made to accompany them to the house of the victim and while on way to the house of the victim, they had assaulted him.
(3.) FIRST information report of this incident was scribed by Om Prakash Pandey and lodged at P.S. Shyam Deorawa on 8.3.79 at 9.35 p.m., the police station being two miles away from the place of incident. A case under Section 302, I.P.C. was registered. P.W. 10 Sri Krishna Misra, Officer -in -charge of police station Shyam Deorawa had investigated the case. On 8.3.79 he went to the scene of occurrence. Since there was no proper arrangement of light, nothing could be done in the night. Investigation was started by the I.O. on 9.3.79. He had found the dead -body of Ayodhya Pandey in front of the house of Sheo Ratan Yadav. The I.O. held inquest on the dead body and prepared inquest report (Ex. Ka. -5) and other papers (Exs. Ka. -6 to Ka. -9). He sealed the dead body and sent it for postmortem. From the place where the dead -body was lying, he had taken samples of bloodstained and plain earth. He thereafter interrogated the witnesses and at the pointing out of the first -informant and other witnesses, he inspected the scene of occurrence and prepared site plan (Ex. Ka. -lO). The statement of Sadal alias Sadabriks was recorded on 11.3.79 and the same day he was got medically examined. On completion of the investigation, charge -sheet was submitted on 6.5.79.;