STATE OF U P Vs. SARVJEET

JUDGEMENT

(1.) THE State has come up in appeal against the judgment and order of acquittal dated 21 -2 -1981 passed by Sri B.P. Srivastava, the then III Additional Sessions Judge, Deoria in Sessions Trial No. 347 of 1978 under Sections 147, 148, 307 read with Section 149 I.P.C., 436 read with Section 149 I.P.C. and 302 read with Section 149 I.P.C. Nine accused respondents, namely, (1) Sarvjeet (2) Om Prakash (3) Jagdish (4) Ram Narain (5) Raj Kishore (6) Durga Prasad (7) Indrajeet (8) Awadh Narain and (9) Raj Banshi Tiwari were tried in the said trial. All of them were charged under Sections 307 read with Section 149, 436 read with Section 149 and 302 read with Section 149 I.P.C. Indra Jeet, Awadh Narain and Raj Banshi Tiwari were charged for rioting under Section 147 I.P.C. whereas the rest under Section 148 I.P.C. The incident occurred on 7 -7 -1978 at about 7.30 p.m. at three places within Police Station Kotwali, District Deoria. The F.I.R. was lodged the same night at 8.20 p.m. by Brij Raj Tiwari PW 1. One Guru Prasad Tiwari was murdered in the incident whereas Subhash PW 2, Devi Prasad Pandey PW 5 and Virendra Kumar sustained injuries.

(2.) THE case of the prosecution as unfolded during trial through F.I.R. and the evidence may be related thus. Brij Raj Tiwari PW 1 resided in village Deoria Ram Nath, Police Station Kotwali, District Deoria. The accused respondents were also the residents of the same place. Sarvajeet, Indrajeet and Jagdish accused were real brothers. Om Prakash was the nephew of Sarvjeet and others. Durga Prasad was the son of accused Awadh Narain. The accused Rajbanshi Tiwari and Raj Kishore were Pattidars of accused Awadh Narain and the accused Ram Narain belonged to the group of the remaining accused. Enmity on account of litigation was going on between the family of the informant Brij Raj Tiwari PW 1 on the one hand and the accused Sarvjeet and Raj Kishore on the other. Earlier to the present incident, on the eve of Holi some had inflicted a knife blow on the accused Sarvjeet in which Subhash Tiwari PW 2 (brother of the informant) was implicated as accused. Sometime thereafter, Hari Ram first cousin of accused Durga was also inflicted knife blow by someone in which the informant, his father Guru Prasad (deceased of the present incident), Mahasarey, Subhash Tiwari PW 2 and Jai Shankar were implicated as accused. Proceedings under Sections 107/117 Cr. P.C. had also been drawn between the informant and others on one side and the accused Durga and Hari Ham on the other.

(3.) THE present incident occurred in three parts. At about 7.30 p.m. on 7th July 1978, Subhash - younger brother of the informant was sitting at his grocer's shop on the crossing in front of the house of Sri Vishwa Nath Pandey, Vakil. All the accused respondents with 2 or 3 other companions reached there. Sarvjeet and Om Prakash had bombs in their hands; Jagdish had a gun Ram Narain had country made pistol; Raj Kishore had a spear; Durga Prasad had a Pharsa and the remaining accused had lathis. As soon as they reached the shop of Subhash, accused Sarvjeet and Om Prakash attacked Subhash by means of bombs, Ram Narain by means of country made pistol and Jagdish by means of gun. Subhash ran for his life and anyhow saved himself but was hurt in his leg in this process. This occurrence was witnessed by Jagdish Mani, Chandbali Pasi, Brijesh Tiwari and others.