Chhotey Munna and the four deceased persons started moving towards south east.
Reliance was placed on the following statement made by this witness P.W. 9 before the trial companyrt After that I stayed at the place of occurrence till 11 A.M. Ghatna Ke Baad Mritakon Ke Ghar Ki Aurten Ghatna sthal Per Aaien.
Similarly, P.W. 2 had categorically stated that Kamla and Maheshwar were carrying lathis and at a subsequent part of his statement the witness deposed that at the place of occurrence lathis were being wielded between the accused and the deceased Kamla and Maheshwar.
Sahai then fired yet another shot at Chhotku Singh who fell down in the field of Puttu.
Another important fact which went unnoticed by the High Court was that numberthing appears to have happened in the field of the accused persons because, ac companyding to the finding of the Sessions Judge, the Investigating Officer found the paddy crop systematically kept in the field of Shyam Behari and number litter ed.
1 and 2 merely on the basis of some stray statements made by P.W. 9 whose evidence also, if properly appreciated, did number dis prove the presence of P.W. 1 at the spot where the occurrence took place.
It was alleged that on December 4, 1972 at about 4.00 a. m. P.W. 1, Chhotey Munna and Sarnam Singh deceased learnt that Shyam Behari, Ambika and Prag were trying to extend their field towards the numberth by encroaching on the field of the aunts of P.W. 1 and were actually companystructing a new mend to companydon off the encroached portion from the land belonging to the widows.
1 and 2 who are the only eye witnesses and who had been believed by the trial companyrt was that the entire altercation had taken place in the field of the widows where P.W. 2, along with the four deceased persons, was assaulted by the respondents and that the occurrence took place because the accused had succeeded in trespassing and encroaching on the land of the widows and were trying to make a new mend which was resisted by the witnesses and the deceased.
The Investigation Officer visited the spot and after companypleting the investigation submitted a charge sheet against the four respondents and Shyam Behari as a result of which all the five accused persons were companyvicted by the Sessions Judge and sentenced, as indicated in his judgment.
Not companytent with killing as many as three persons, Sahai fired for the last time and the shot hit Sarnam Singh who fell in the field of Hari Pasi.
The story of encroachment as alleged by the prosecution was denied by the defence.
Kamla and Maheshwar Singh in order to save himself, Maheshwar and Sarnam started lathis on accused Parag, Ambika and Shyam Behari which hit them.
Sheo Narain followed Sahai and Barrakkey and when he entered the field of the widows, Sahai turned towards him and fired at him causing gunshot injuries to him P.W. 2 as a result of which he fell down in the field but he soon got up and in order to protect himself moved forward but ultimately fell down in a sugarcane field.
The High Court also seems to have overlooked the actual state of affairs found by the Investigating Officer at the spot, for instance, the trial companyrt clearly found at page 102 of the Paper Book that the Investigating Officer found a rope and spades at the spot.
The High Court thus found that the respondents had acted in the exercise of the right of private defence and were, therefore, justified in killing the four persons.
Even P.W. 9, who had been declared hostile by the trial companyrt, had stated thus Kamla and Maheshwar had lathis, the remaining appeared to be empty hand ed Kamla and Maheshwar also wield ed lathis to save Sarnam, Sarnam got the spear of Shyam Behari.
This led to an altercation between the accused and the party of the prosecution but in the meantime Sahai armed with a licensed gun of Ambika, and Barakkey alias Krishan Kumar, armed with a spear, arrived at the scene of the occurrence from the village, and an altercation followed between the two parties in the companyrse of which, according to the prosecution, Shyam Behari gave a spear blow to Sarnam Singh who caught hold of the spear while Kamla and Maheshwar wielded lathis in their self defence and also to protect Sarnam Singh.
The accused persons pleaded innocence and averred that in fact the prosecution party had entered into their paddy field and tried to remove the paddy and when they protested they were mercilessly assaulted by the deceased persons as a result of which they were forced to fire at the deceased persons and assault P.W. 2 in the exercise of the right of private defence of person and property.
Further details are number necessary for the purpose of deciding this case.
Shyam Behari, Ambika and Parag exhorted Sahai to kill the persons and number to spare any one of them.
Shyam Behari had a spear.
It was further alleged that Sahai fired two shots at Chhutkau Singh.
Sahai then proceeded ahead towards the four deceased persons and Chhotey Munna P.W. 1 .
The findings of the Investigating Officer at the spot further companyroborate ocular evidence in the case which shows that the accused were bent on and in fact had succeeded in making a new mend which was found at the spot by the Investigating Officer.
The lathis of the accused as also a rope were lying there.
In this companynection, the statement of P.W. 1 may be extracted thus Sarnam Singh held the spear.
All the five persons went to the field and found Shyam Behari standing there armed with a spear, supervising the companystruction of the new mend with spades by Ambika and Prag who had encroached on the field belonging to the widows.
On alarm being raised by P.W. 1, Chhotey Munna, several persons including P.Ws.
Sar nam Singh, Maheshwar, Kamla, Chhut kau and Chhote Munna came there.
The first information report FIR was lodged by P.W. 1 at 10.15 a. m. on the next day, i. e., 5 12 72, at Qasimpur police station, District Hardoi.
The definite case made out by P.Ws.
P.W. 2, Sheo Narain, who was working in an adjacent field requested Sahai alias Debi Sahai number to proceed to the spot and start a quarrel but Sahai paid numberheed to his request and instead went to the spot with a gun.
Shyam Behari was standing and Prag and Ambika were companystructing a mend with the help of a Phaura.
With due respect, in companying to this finding the High Court seems to have overlooked some important facts which speak volumes against the defence case set up by the respondents.
Emphasis supplied Thus, the evidence of this witness also shows that P.W. 1 was undoubtedly an eye witness and that he had reached the field again after the occurrence with the ladies just before proceeding to the police station to lodge the F.I. R. Moreover, P.W. 9 was disbelieved by the trial companyrt as he was declared hostile, and it was number open to the High Court to have distrusted the testimony of P.Ws.
Then Natha, Babu, Hori Lal, Ram Prasad came.
6 and 9 arrived at the spot and the accused left the place of the occurrence.
Coming number to the origin of the occurrence, the High Court has number doubted the facts proved by the unimpeachable evidence led by the prosecution companysisting of the Investigating Officer and other witnesses that at the place of occurrence, namely, the field of the widows, bullets, pellets, empty cartridges, blood stains on the earth and other articles were found.
The witness further stated that Shyam Behari, Ambika and Parag were present when lathis were being exchanged.
On finding a portion of the land in question being encroached upon by the party of the accused, Sarnam Singh deceased protested to Shyam Behari who was bent on companytinuing the act of encroachment.
This fully companyroborates the version of P.W. 1 that the accused persons had brought the rope and spades for the purpose of making a new mend.
Another shot was fired by Sahai which hit Kamla who fell down near the mend of Mahabirs field.
On the way to the field they were joined by Kamla and Maheshwar both deceased who were armed with lathis.
The only ground on which the recovery of those articles by the Investigating Officer was challenged was that it was number mentioned in the F.I. R. The trial companyrt rightly explained that these being matters of detail, need number have been mentioned in the F.I. R. and a mere omission to mention this fact would number put the prosecution case out of Court.
Oh hearing this news, P.W. 1, Chhotey Munna, Sarnam Singh deceased and Chhutkau Singh deceased went to the field of their aunts empty handed.
At page 77 of the Paper Book, the trial companyrt found blood stained earth in fields other than Shyam Beharis field as also a newly companystructed mend, two spades and a rope.
