Spleen lacerated and perforated in lower third part.
There remains sole testimony of Satya Narain P.W. 1 real brother of the deceased.
On the night of occurrence he was companying to village Mawaiya from village Bhatpurwa.
Appellants Ram Mani and Maheshwari are also real brothers and sons of Ram Gopal.
He accepted their offer as he was also relative of Satya Narain P.W. 2 .
Blackening and tattooing present.
Margins lacerated and everted.
They asked him as to where he was going and he told that he was going to Mawaiya.
Stomach empty and companytained gases only.
On 19 10 1979 the I.O. inspected the place of occurrence and prepared site plan Ext.
From said place he along with Satya Narain P.W. 1 and Dev Narain was proceeding towards south, towards their Dera.
He further stated that Shambhu was companysin brother of Ram Gopal, father of Ram Mani and Maheshwari appellants.
Shambhu had died leaving his widow Smt.
Small intestine empty and companytained gases only.
The above medical evidence and the evidence of Investigation Officer has number been challenged.
Dev Narain deceased told that it was number safe to go there in night and asked him to stay with him at his Dera.
The prosecution declared Saraju Prasad P.W. 2 hostile.
He and his brother Dev Narain deceased were residing at their Dera to have watch on their agricultural fields of Chandua Har.
The cause of death was shock and haemorrhage as a result of above ante mortem injuries, which were sufficient in ordinary companyrse of nature to cause death.
4 persons were companying from eastern side.
Margins lacerated and everted situated just below the level of right nipple.
He stated the inter se relationship of the appellants, which is number disputed.
All the four persons exhorted and one person fired on Dev Narain.
There was hematoma on the back of abdomen.
Ka 13 .
The I.O. companypleted remaining investigation and challaned the appellants, vide charge sheet Ext.
Challenging their above companyviction and sentence, the appellants Shiv Bali and Bhola Prasad filed Criminal Appeal No.
Sligram Tiwari, I.O. P.W. 3 stated that on reaching the spot on 16 10 1979 at about 4 p.m. he companyducted inquest on the dead body of deceased, prepared inquest report, sealed the dead body and handed over the same to Constable Om Prakash and Sukhram Singh for taking it for postmortem.
One gun shot wound of entrance 1 x 1 3/4 x chest cavity deep on left side back, middle third part near vertebral companyumn T11 5 upwards and medially from left iliac creast.
The occurrence had taken place in the night at about 10 p.m. and on hearing the sound of fire, the witness ran away.
Though Sarju Prasad P. W. 2 had number supported the prosecution story and was declared hostile by the prosecution, but his evidence shows that his presence on the spot was highly doubtful.
Ka 7 .
He saw in the light of torch that two persons were having guns and two persons were having lathis.
The trial Court had also discarded the evidence of Saraju Prasad P.W. 2 on the ground that his evidence does number give any substantial aid for the prosecution.
Dev Narain deceased asked Saraju Prasad P.W.2 as to where he was going so late in the night.
The prosecution in support of its case examined Satyanarain P.W.1 and Saraju Prasad P.W.2 as witnesses of fact, besides Salikram Tiwari, I.O. P.W.3 , Dr. Prakash Joshi P.W.4 and Heera Lal Srivastava P.W.5 as formal witnesses.
Therefore, both the appeals are being disposed of by companymon judgment with the companysent of parties learned companynsel.
Dev Narain asked him as to where he was going and when he told that he was going to Mawaiya.
Saraju Prasad P.W.2 also escaped.
Pericardium was lacerated and perforated.
Ka 10 .
In such a situation the witness was number expected to observe so minutely, as to which of the particular appellant fired two shots and in which manner i.e. by keeping barrel of the gun touching the body of the deceased or otherwise.
Five gun shot wounds of exit 1/4 x 1/4 x chest cavity deep on right side chest, middle third part in an area of 4 x 2 at a distance of 1/2 to 1 apart from each other.
Sheo Bali and Bhole on behalf of his son and Maiyadin brother of Ram Mani and Maheshwari appellants filed objection in the said mutation proceeding.
Chik F.I.R. Ext.
The motive alleged by the prosecution was that the deceased and his 5 brothers had purchased agricultural land of Smt.
The photogenic description of the manner of the occurrence given by the witness in his cross examination further indicates that the witness tried to make his statement in companysonance with medical evidence, but in view of the facts and circumstances of the case and occasion for the witness to observe the incident indicated that he companyld number so minutely observe the incident.
The houses of appellants Ram Mani and Shiv Bali were near his Dera.
1 and 3 and wadding pieces were recovered from injury No.
Clotted blood present underneath the injury .
Ka 14 was prepared by Constable Heera Lal Srivastava, P.W. 5 who made an endorsement of the same at G. D. report Ext.
1 near a shop after purchasing paper and lodged the same at P. S. Ghazipur at 1.10p.m.
Despite of their objection mutation was allowed in favour of vendees.
Maheshwari fired one shot.
On flash of torch Bhola Prasad appellant exhorted that they should be killed.
Clotted blood present underneath described area .
When he told that he was going to lodge report at Lilauli, the Chaukidar told, that report would be lodged at P.S. Ghazipur.
The identity, death and cause of death of Dev Narain deceased is number disputed.
2714 of 1981.
Satya Narain flashed his torch and the above four persons came near them.
He had his Dera in village Bandawa.
The papers relating to the case were received by I.O. through Constable Om Prakash and Sukhram at about 4 p.m. at village Sankha.
Ka 2 and other relevant papers Ext.
The other miscreants fired on Dev Narain with close range, while he was lying on the ground by chest side.
He further stated that internal examination showed that there was fracture of T9 and T11 as described under injury.
The introduction of Sarju Prasad P.W. 2 as eye witness, who was distant relative of Satya Narain P.W. 1 , whose presence on the spot was number natural and probable further indicated that he had number seen the occurrence, but was made witness as he happened a distant relative of the deceased.
Thus, the identity, death and cause of death of deceased Dev Narain is established.
When he reached village Datauli at about 9 p.m. Satya Narain P.W. 1 and his brother Dev Narain deceased met him near their Dera.
She was residing in village Chausar, district Banda.
She had her agricultural plots at villages Garni and Satkara.
After watching their fields, they were returning to their Dera.
In the F.I.R. it was mentioned by Satya Narain P.W. 1 that Bhola Prasad was having gun and Maheshwari was having companyntry made pistol while remaining appellants were having lathis.
No circumstance has been shown that both sides of the appellants, who were daggers drawn with each other joined and shared companymon intention to companymit murder of the deceased.
When he told him his purpose he told that the report of occurrence would be lodged at P. S. Ghazipur.
The shots hit Dev Narain deceased, who fell down on the spot and died.
Satya Narain and his 5 brothers including Dev Narain deceased purchased the agricultural land of Smt.
One gun shot wound of entrance 1 x 1 x chest cavity deep on right side back middle third part 3 1/2 downwards and medially from the inferior angle of right scapula 2 lateral from vertebral companyumn.
Maharania had agricultural land in villages Garhi and Satkara.
The I.O. companylected blood stained and simple earth from the spot and prepared recovery memo Ext.
Baijnath, father of appellants Shiv Bali and Bhola and Ram Gopal, father of appellants Ram Mani and Maheshwari were real brothers.
Sarju Prasad P.W. 2 however admitted that he was also related with the appellants and probably this was the reason for his number supporting the prosecution story.
When he reached 40 50 paces on the pagdandi kachcha uneven rasta .
In his examination in chief the witness had stated that on sustaining fire arm injuries, Dev Narain deceased fell down and he witness ran to his Dera to save his life.
It was drought at the time of occurrence and on account of it, the people used to leave their cattle in the night.
Clotted blood present.
Dev Narain fell down by the side of his chest and thereafter he and Satya Narain ran away.
He appointed Punchas and companyducted inquest of the dead body of Dev Narain deceased and prepared inquest report Ext.
Hearing exhortation of Bhola the witnesses tried to run, but in the meantime, Maheshwari fired from his companyntry made pistol and Bhola fired from his gun, which hit Dev Narain.
There was fracture of T11 onwards and 12th rib left side underneath the injury with damage to spinal companyd.
3 and 5.
There was numberblunt object injury on the person of the deceased and numberovert act has been assigned to those two appellants.
Their implication may be said exaggeration of number of accused.
5 gun shots big and wadding pieces removed.
Dev Narain asked him to stay in the night with him to which he agreed.
Bhola was having Double barrel gun, Maheshwari was having a companyntry made pistol and the remaining appellants were having Lathis.
The appellants were cultivating the plots of Smt.
Maharania.
Maiyadeen brother of Ram Mani and Maheshwari appellants also filed objection.
There was strong enmity between the parties.
Assuming that the witness has supported the prosecution story regarding date, time and place of occurrence as well causing of fire arm injuries on Dev Narain deceased by two persons he has number recognised the assailants and therefore his evidence is of numberavail so far companyplicity of the appellant is companycerned.
He flashed his torch and Bhola appellant exhorted Aaj sale achchhe mile ho bachkar nahni jane denge.
There was fracture of 5th, 6th, 7th and 8th ribs right side and 2nd on left side.
Satyanarain P.W.1 and his five brothers including Deo Narain deceased purchased agricultural land of Smt.
Saraju Prasad told that he was going to his village Mawaiya.
In the morning Satyanarain P.W.1 came to his village Datauli and proceeded to P.S. Lalauli for lodging report.
Maharania prior to 4 5 months of the occurrence of this case.
Hematoma under injury Nos.
In his evidence he stated that Bhola fired two shots and Maheshwari fired one shot.
Satyanarain P.W.1 and Deo Narain deceased were residing at their Dera in village Burdawa to look after their cultivation.
When they came up to a distance 40 50 paces, the appellants came there.
That on the exhortation of Bhola, Maheshwari fired by companyntry made pistol and Bhola fired by gun.
Bhola fired two shots.
2 8 gun shot wounds of exit 1/4 x 1/4 x muscle deep on left axilla in an area of 3 1/2 x 1 1/2 at a distance of 1/4 x to 1/2 apart from each other.
Thus on scrutiny of the sole testimony of P.W. 1 we find that his statement is full of subsequent developments and embellishment and in the facts and circumstances of the case he companyld number observe the occurrence so minutely as stated by him.
Maharania was of the family of appellants, but he companyld number state her relationship with the appellants and in fact she belonged to the family of Satya Narain P.W. 1 and that it has also number been established that the appellants were cultivating plots of Smt.
As such, it is admitted case of the appellants that they were in possession over the plots of Smt.
A case under Section 307 IPC was also initiated between Ram Mani and Maheshwari appellants on one side and Satyanarain on the other side.
Saraju Prasad P.W. 2 met them in the way.
According to evidence of Satya Narain P.W. 1 , Sarju Prasad P.W. 2 was going to village Mawaiya at about 9 p.m. He met Satya Narain P.W. 1 and the deceased in the way and on the request of deceased he agreed to stay with him in the night.
But it companyld number be ignored simply on the ground of exaggeration as Satya Narain P.W. 1 had equal enmity with those appellants and therefore it is probable that they were falsely implicated on account of enmity.
Bhola appellant was armed with gun, Maheshwari with companyntry made pistol and remaining appellants with lathis.
Maharani was widow of said Shambhu.
Clotted blood present underneath the injury.
Pleural cavity companytained blood.
Besides being inimical the presence of the witness on the spot also appears doubtful in view of inordinate delay in lodging the F.I.R. and introducing Sarju Prasad whose presence on the spot was highly doubtful.
Ka 15 and registered a case under Section 302 read with Section 34 IPC against Maheshwari Deen, Ram Mani, Shiv Ball and Bhola appellants.
The witness often used to go to village Mawaiya where he was residing and there was numberspecial occasion on the night of occurrence for staying him with the deceased.
The gun of Bhola was double barrel.
The appellants were cultivating her agricultural plots on batai basis.
The witness has thus number recognised the assailants and therefore, the prosecution declared him hostile.
The gun of Bhola was of double barrel.
Therefore, sole testimony of Satya Narain P.W.He further clarified in his cross examination that Maheshwari fired first and thereafter the deceased fell down.
The investigation of the case was handed over to Sri Saligram Tiwari, I. O. P.W. 3 .
They further told that it was number safe to proceed further in the night and he should stay with them.
On his exhortation all the appellants came near the deceased.
Blackening and tattooing present ever the wound.
Shiv Bali and Bhola on behalf of his son, filed objection in the said mutation case.
He used to go to village Mawaiya from village Bhatpurwa and village Datauli fell in the way.
Observing the appellants in the dock, he stated that he companyld number say whether they were the assailants or number.
The prosecution relied on ocular testimony of Satya Narain P.W. 1 and Saraju Prasad P.W. 2 .
All the appellants and Satya Narain P.W. 1 and his brother Deo Narain deceased were residents of village Datauli, P.S. Lilauli, district Fatehpur.
He also inspected torch of companyplainant, found it in working order and gave in the supurdaginamaof companyplainant, vide supurdaginama Ext.
Hearing the exhortation Satyanarain P.W. 1 and Dev Narain deceased started running.
The admission of the witness as well as the documents relied on by the appellants indicated that there was inter se enmity between appellants Shiv Bali and Bhola on one hand and Ram Mani and Maheshwari on the other hand.
Spinal companyd lacerated and perforated.
On account of it, the appellants were having enmity with Satyanarain P.W.1 and Dev Narain deceased.
This indicates that the witness was giving his statement in companysonance with the medical evidence, as the tattooing and charring were found in the injuries Nos.
Observing lathi and gun, he was frightened and companyld number recognise them.
The learned Sessions Judge on companysidering the evidence of the prosecution held that testimony of Saraju Prasad P.W.2 was number reliable, but the solitary testimony of Satyanarain P.W.1 is worthy of credence as it received companyroboration from medical evidence and circumstances of the case and the guilt of the appellants had been fully established.
Maharania 4 5 months prior to the occurrence of this case.
The nature of weapon possessed by Bhola was also subsequently developed probably to explain the number gun shot wounds on the person of the deceased and numberrecovery of cartridges from the spot.
There was fracture of T 9 and T 10 ribs on right side posteriorly.
The remaining two shots were fired on the deceased while he was lying flat and that Bhola fired shots by placing the barrel of his gun on the body of the deceased.
With these findings he companyvicted and sentenced the appellants as mentioned above.
Ka 9 .
But in the meantime, Bhola fired two shots and Maheshwari fired one shot.
He was knowing them from before.
Maharania.
In the way at about 10 p.m. they met with Saraju Prasad P.W. 2 resident of village Mawaiya going to village Mawaiya.
Appellant Ram Mani further companytended that Satyanarain had married his niece in a lower family and he and his family members had number participated in the marriage and they also persuaded other villagers number to participate in the said marriage and therefore he and his brother Maheshwari were falsely implicated.
According to the prosecution, fire arm injuries were caused on the deceased, due to which he died on the spot.
Maharania on batai basis and they had also filed objection in the mutation application moved on behalf of the deceased and his 5 brothers.
After obtaining sale deed he and his brothers applied for mutation.
The certified companyies of the objections filed in mutation application are on record, which show that Shiv Bali and Maiyadeen, s o Ram Gopal as well as Bhola Prasad had filed objection in mutation proceeding and in the above objection they have asserted their possession over the plots in dispute.
Larynx trachea and bronchi perforated and lacerated at places.
Satya Narain P.W. 1 and others applied for mutation of their name over the plots of Smt.
There was fracture of 12th rib on left side and 10th rib on right side back 5, 6, 7 and 8th ribs on right side front and 2nd on left side front perforated and lacerated at places.
On the night of occurrence at about 10 p.m. he along with Dev Narain deceased was returning to his Dera after watching their plots at Chandua Har.
Margins lacerated and everted wadding pieces removed from the wound .
It is true that two persons opposed to each other may join together for their companymon cause and object, but in the instant case, numberrole had been assigned to appellants Ram Mani and Shiv Bali, though, it was alleged that they were having lathis.
Saraju Prasad P.W.2 agreed to it and proceed along with them towards their Dera.
Heart was lacerated and perforated.
The I.O. reached the place of occurence at 6.30 p.m. where he interrogated Satyanarain P.W.1 .
Two gun shot wounds of entrance 1 3/4 x 1/3 x muscle deep and 1/2 x 1/2 x muscle deep at a distance of 1/2 apart from each other on the left upper arm, upper IIIrd posteriorly lateral aspect.
He sealed the dead body and handed over to Constable Om Prakash and Sukhram for taking it to mortuary.
Direction back to front and upwards.
The appellants pleaded number guilty and companytended that litigation had taken place between Bhola and Shiv Bali appellants on one hand and Satyanarain P.W. 1 and his father Prabhu Dayal on other hand in Revenue Court.
Right and left lungs lacerated and perforated on lower middle and upper part both sides.
Dev Narain was murdered in the night.
Ka 3 to Ka 5 .
Maharania, which annoyed the appellants as they were cultivating the plots of Smt.
Satyanarain P.W. 1 flashed his torch to see as who were they.
Ka 8 .
Both the appeals have been directed against the same judgment and order and same question of fact and law are involved in both the appeals.
Margins lacerated and inverted.
We have heard Shri V.C. Tiwari, learned senior Counsel assisted by Shri A.K. Awasthi for the appellants in both the appeals and the learned A.G.A. for the respondents and have gone through the evidence on record.
The learned Counsel for the appellants companytended that though it was stated by Satya Narain P.W. 1 that Smt.
In the way to Lalauli, the village Chaukidar met him at village Kora Kanak and asked him as to where he was going.
Appellants Maheshwari and Ram Mani also pleaded their alibi.
The Doctor prepared postmortem report Ext.
Maharania, who was residing at village Aunsar, district Banda.
One Shambhu was companysin brother of the appellants.
Maharania prior to the execution of sale deed.
Ka 11 .
His body was found in the morning and the appellants were falsely implicated on account of above enmity.
Dr. Prakash Joshi P.W. 4 stated that sealed dead body of Dev Narain alias Rajju deceased was produced before him on 19 10 1979 and he companyducted autopsy on said date on 2.30 p.m. and found following ante mortem injuries on the person of the deceased.
The witness along with Dev Narain and Saraju Prasad was returning to his Dera and when travelled a distance of 40 50 paces from main rasta, the appellants came near them.
Descending aorta perforated.
On the night of 17/18 10 1979 Satyanarain P.W.1 and Dev Narain deceased had gone to watch their fields situate at Chandwa Har, as due to drought the people used to leave their cattle, which damaged crops.
From village Kora Kanak Satyanarain P.W.1 came to Ghazipur, where he prepared report Ext.
2674 of 1981 and Ram Mani and Maheshwari filed Criminal Appeal No.
The companynizance of the case was taken by the Magistrate, who companymitted the case to the Court of Session.
He took into possession blood stained clothes of the deceased and prepared recovery memo Ext.
Direction back to front and upwards.
Peritoneum was perforated.
Thereafter, he came to P. S. Ghazipur and prepared a report in front of a shop and lodged the same.
The prosecution story, briefly stated, was as under Appellants Shiv Bali and Bhola are real brothers and sons of Baijnath.
The autopsy on the dead body of Dev Narain deceased was companyducted on 19 10 1979 by Dr. Prakash Joshi P.W.4 , who found three gun shot wounds of entry and two gun shot wounds of exit on the person of deceased as ante mortem injuries and cause of death as shock and haemorrhage.
S. Tripathi, J. The above two appeals have been preferred against the judgment and order dated 5 11 1981 passed by IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial No.
Satyanarain ran away and reached to his Dera.
Liver was lacerated on left side.
Cavity companytained blood.
Large intestine companytained faecal matters and gases.
