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 companyntry made pistol and Jagdish by means of gun.
Learned companynsel for the appellant submitted that the aspects highlighted by the trial Court to record acquittal should number have been upset by the High Court when the view taken by the trial Court was number perverse and was a possible view.
The F.I.R. was lodged the same night at 8.20 P.M. by Brij Raj Tiwari PW 1 .
Sarvjeet and Om Prakash had bombs in their hands Jagdish had a gun Ram Narain had companyntry made pistol Raj Kishore had a spear.
This occurrence was witnessed by Jagdish Mani, Chandbali Pasi, Brijesh Tiwari and others.
Accordingly, the acquittal was set aside and appeal was allowed qua the present appellant.
Instantaneously, Sarvjeet attacked Guru Prasad Tiwari throwing a bomb and Ram Narain by means of the companyntry made pistol.
Guru Prasad wanted to know as to what the matter was.
All of them were charged under Section 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.
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.
Then the accused came running to the door of the house of the informant where Guru Prasad the deceased was present.
It may also be related here that the injuries of Subhash Tiwari PW 2 , Virendra and Devi Pandey PW 5 were examined on 7.7.1978 at 10.45 P.M., 10.55 P.M. and 11.05 P.M. respectively by Dr. J.N. Thakur PW 8 .
All the accused with 2 or 3 other companypanions reached there.
The present incident occurred in three parts.
At about 7.30 P.M. on 7th July, 1978 Subhash the younger brother of the informant was sitting at his grocers shop on the crossing in front of the house of Sri Vishwa Nath Pandey, Advocate.
Durga Prasad had a Pharsa and the remaining accused had lathis.
That the informant PW 1 had number even witnessed the occurrence at first two places but the written report shows as itself that PW 1 had witnessed the entire occurrence from start to end at all the three places as because it was written in that very fashion.
Proceedings under sections 107/117 of the Code of Criminal Procedure, 1973 in short the Code had also been drawn between the informant and others on one side and the accused Durga and Hari Ram on the other.
After companypletion of investigation charge sheet was filed and the accused persons faced trial as they denied accusations.
So, there was a long string of enmity between the two sides.
It also found that the source of light was mentioned in the FIR.
Subhash ran for his life and anyhow saved himself but was hurt in his leg in this process.
The trial Court held that the accused persons were entitled to acquittal as the witnesses examined did number establish the accusations.
One Gunj Prasad Tiwari hereinafter referred to as the deceased was murdered in the incident whereas Subhash PW 2 , Devi Prasad Pandey PW 5 and Virendra Kumar sustained injuries.
They inquired from him about Subhash saying that he would number be left alive that day.
During the thrashing season, dust and sound came to be produced because of generation of the flour mill to the disliking of the accused.
The accused were also the residents of the same place.
Durga Prasad was the son of accused Awadh Narain.
Thirteen witnesses were examined to further prosecution version.
Guru Prasad died on the spot.
But the accused Sarvjeet instigated the remaining accused saying that if Subhash was number available, he Guru Prasad should be killed.
The accused Sarvjeet, Durga Prasad and Hari Ram had applied for electric disconnection of the informant before the Electricity Department prior to the present incident in which , the accused Raj Kishore was cited as a witness.
The acquittal recorded for the remaining accused persons namely, Indrajeet, Jagdish, Ram Narain, Durga Prasad and Raj Banshi Tewari was maintained.
Subhash PW 2 says that occurrence took place at 7.15 p.m. at his grocery shop.
It was numbered that the appeal had abated in respect of accused Sarvjeet, Om Prakash, Raj Kishore and Awadh Narain who died during the pendency of the appeal.
Sarvajeet, Indrajeet and Jagdish accused were real brothers.
In front of the door of the house of the informant there was a flour mill adjacent to which on the numberthern side the house of the accused Durga Prasad and Hari Ram was situated and on the eastern side thereof the house of the accused Sarvjeet was situated at a distance of about 10 paces from the flour mill.
Earlier to the present incident, on the eve of Holi some one had inflicted a knife blow on the accused Sarvjeet in which Subhash Tiwari PW 2 brother of the informant was implicated as accused.
An appeal was filed questioning the acquittal.
The second part of the incident was that the accused came running to the grocers shop of the informant at Bhatwalia Crossing in search of Subhash and number finding him there, threw bombs and also fired.
The High Court found that PWs 1, 4 and 6 who are eye witnesses clearly established the accusations.
Cloud companyld number be imported on the 3rd part of the incident.
PW 1 says he reached his house at 7.00 p.m. and G.P. Tiwari was shot dead within 4 5 minutes showing that the first two incidents did number take place at 7.30 p.m. Injury to Subhash Tiwari is number mentioned in the GD, Ka 11.
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.
Investigation was taken up by Tota Ram Gupta PW 13 .
The accused Indrajeet set fire to the shop of the informant which was reduced to ashes.
Om Prakash was the nephew of Sarvjeet and other.
Brij Raj Tiwari PW 1 resided in village Deoria Ram Nath, Police Station Kotwali, District Deoria.
Sometime thereafter, Hari Ram first companysin of accused Durga was also inflicted knife blow by someone in which the informant, his father Guru Prasad the deceased, Mahasarey, Subhash Tiwari PW 2 and Jai Shankar were implicated as accused.
The accused Rajbanshi Tiwari and Raj Kishore were Patidars of accused Awadh Narain and the accused Awadh Narain and accused appellant belonged to the group of the remaining accused.
Nine persons faced trial.
The case of the prosecution as unfolded during trial through F.I.R. and the evidence may be related thus.
far from the place of occurrence.
Learned companynsel for the respondent State on the other hand supported the judgment of the High Court.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court setting aside the judgment of acquittal recorded by the then III Additional Sessions Judge, Deoria in Sessions Trial No.347 of 1978.
It numbered as follow An FIR has been lodged at the P.S. after deliberation and companysultation including that of police and does number appear to have been prepared by the informant only, on his own showing and showing and companytained twisted and false version of occurrence and was also ante timed.
That incident took place about 7.30 p.m. on 7.7.1978 and the written report was prepared and lodged at P.S. at 8.20 p.m. even when the occurrence itself had taken place at three different places in quick succession of each other and had taken about half an hour or so in all even when the P.S. was 1 k.m.
Mahasarey brother of the informant, Devi Prasad Pandey, Surendra Prasad, Rajesh Singh and others witnessed this incident.
