POONAM SRIVASTAV,J. - (1.) HEARD Sri Shashi Bhushan, learned counsel for the appellants and learned A.G. A. for the State.
(2.) THE instant appeal was preferred by two appellants namely Ram Prasad Mani Tripathi alias Bhola son of Ram Pragati Mani Tripathi and Laljee Mani Tripathi, son of Narshingh Mani Tripathi. Non-bailable warrants were issued against the appellants by this Court on 31.8.2009. Report has been sent by the Chief Judicial Magistrate, Gorakhpur in compliance of the aforesaid order informing that the appellant No. 1 namely Ram Prasad Mani Tripathi alias Bhola had died 10 years before. The report from the concerned police station as well as Gram Pradhan has been appended with the report of the Chief Judicial Magistrate, Gorakhpur. Office report dated 30.10.2009 shows that in view of the report of the Chief Judicial Magistrate, the appellant No. 1 has died. The appeal stands abated so far the accused Ram Prasad Mani Tripathi alias Bhola is concerned. I proceed to hear the appeal on behalf of appellant No. 2 Laljee Mani Tripathi. He is convicted under Section 307 I.P.C. and sentenced to three years R.I. The prosecution was initiated on Ex. Ka-1, a written report of Arun Kumar Mani Tripathi, which was lodged by him at Police Station Sikriganj on 11.6.1978 at 10.00 A.M. In this written report, it was alleged that on account of enmity between the complainant and his pattidar Ram Pragati Mani Tripathi, who was out on the day of the incident, accused Ram Prasad alias Bhola who is the son of Ram Pragati Mani Tripathi was roaming about with the licenced gun of his father. On 11.6.1978 at about 8.00 A.M. Awadhesh Kumar, brother of the complainant Arun Kumar was busy in some work in connection with the marriage of the daughter of Ganga Mani Tripathi at his Darwaza. When Ram Prasad accused armed with a gun and Lalji armed with lathi came there, the accused Lalji exhorted Ram Prasad to kill Awadhesh. Thereupon accused Ram Prasad alias Bhola fired a shot from his gun at Awadhesh but it missed and then Pradumn, Ram Bujharat, Harish Chandra, Ganga Mani and Kashi Dubey chased Ram Prasad. When the accused reached the Chak road near the field of Ram Das Mani Tripathi, on the exhortation of Lalji accused, Ram Prasad fired a shot at the complainant Arun Kumar with his gun causing injuries. The witnesses then threw brick bats and Dhela on the accused who ran after throwing away his gun. This report was lodged at police station Sikriganj at 10.00A.M. by Arun Kumar. Case was registered at the police station and Arun Kumar complainant was sent to P.H.C. Uruwa where he was medically examined by Dr. Sudhakar Dubey. The complainant was also sent for X-ray examination by the Radiologist at the District Hospital, Gorakhpur. The investigation was taken up by Sri Ram Narain Ram, the then Station Officer of Police Station Sikriganj. The weapon of assault namely the gun was deposited at the police station with the report, alleged to belong to accused Ram Prasad. The investigating officer interrogated the witnesses and finally submitted charge sheet against the accused.
(3.) PROSECUTION examined the complainant Arun Kumar Mani Tripathi as PW-1, Harish Chandra as PW-2 and another eye witness Ganga Saran Mani as PW-3. Sri Ram Narain Ram, the Investigating Officer was examined as PW-4, Dr. Sudhakar Dubey, Medical Officer who had examined Arun Kumar, was examined as PW-5 and Dr. S.C. Tripathi, Radiologist was examined as PW-6. Awadhesh Kumar could not be examined as he was reported to be killed before his evidence could be recorded in this case.;