Kishan Chand & Ors vs State Of U.P

3. On 3.02.1978 at about 9 a.m., the said Phool Chand armed with a double barrel gun, his brother Kishan Chand (Accused No. 2) armed with a single barrel gun in the company Bhagauti (Accused No. 3), Badadin (Accused No. 4) and Sheo Prasad (Accused No. 5) who were said to have been armed with lathis came to the land in question. They started construction thereupon with the help of hired labourers. A large number of villagers assembled at the place. Accused were requested not to make any construction till the disputes between them were determined by the competent court.

4. Amongst the villagers, Ram Asrey (since deceased), his son Mishri Lal (first informant), Hardev, Suraj Lal, Ram Singh, Ram Dass, Vishram, Ram Saran, Shiv Pal, Mohan Lal, Shiv Prasad, Umrao, Pyare, Ram Lakhan, Karam Ali and Ram Prasad were present. Allegedly, Phool Chand and others started abusing them. Mishri Lal and his co-villagers asked him not to do so. Accused Nos. 3 to 5, viz., Bhagauti, Badadin and Sheo Prasad, allegedly exhorted Phool Chand and Kishan Chand to shoot Mishri Lal and others whereupon Phool Chand ran towards the roof of the nearby Kothri owned by Mishri Lal and from the roof thereof, he started firing. Kishan Chand is also said to have fired from his gun. Ram Asrey standing at the Galiyara received a gun shot injury. He died at the spot. Mishri Lal and others also received firearm injuries. One of the persons, viz., Ram Harak who had also sustained gun shot injuries breathed his last in the hospital. On receipt of such gun shot injuries, the condition of Suraj Lal, Hardev, Mahan Lal, Ram Dass and Ram Singh allegedly became serious.

Mishri Lal son of the deceased Ram Asrey lodged a First Information Report at about 11.30 a.m. on the said date alleging death of Ram Asrey and Ram Harak at the hands of the accused persons and receipt of injuries by as many as 15 persons, viz., Mishri Lal, Pyare, Shiv Pal, Mohan Lal, Ram Dass, Suraj Lal, Ram Singh, Hardev, Karam Ali, Shiv Prasad, Umrao, Vishram, Prem Prasad, Ram Saran and Ram Lakhan.

5. The defence version in regard to the incident was that the Patta of the disputed land was executed in the name of Phool Chand in the year 1973. He allegedly had raised constructions on eastern and western wall. However, in the year 1977, i.e., after his retirement when he was going to construct his house thereupon, his attempt to do so was opposed by Mishri Lal, Hardev, deceased Ram Asrey and others. An undertaking was said to have forcibly been taken by Lekhpal and Station House Officer of the police station. However, at a later stage, the Tahsildar of the area allegedly directed the Station House Officer of police station Asandra to render all help to him. However, the said order was not complied with. In the written statement filed by the accused persons, the incident that the had taken place on 3.02.1978 at about 9.00 a.m. was accepted but it was contended that while the said Phool Chand with the help of others including hired labourers started constructions, the deceased Ram Asrey and Ram Harak along with a large number of persons being armed with guns and lathis reached there and caused obstructions. Upon protest having been lodged, all of them advanced towards him with a view to kill him. He then ran to the roof of his fathers Baithaka but Ram Asrey and his companions surrounded his house. They also entered therein. An attempt was also made to molest Smt. Shakuntala Devi, sister of Phool Chand. Only at that time, with a view to save the modesty and honour of his sister as also save the life of other members of the family, they caused injuries to various persons. It was alleged that an endeavour was made to lodge a First Information Report by Smt. Shakuntala Devi but the same was not registered. It was further alleged that Smt. Shakuntala Devi came to Barabanki with her father, uncle and brother Gokul Chand and all of them were medically examined by a private doctor whereafter a report was sent to the District Magistrate.

6. The prosecution in support of its case examined 13 witnesses. Mishri Lal (PW-1), Suraj Lal (PW-2) and Ram Saran (PW-3) examined themselves as eye-witnesses to the occurrence. They proved the genesis of the occurrence as also the manner in which it took place. Other witnesses examined by the prosecution were the doctors who had conducted post mortem examination on the body of the deceased Ram Asrey and Ram Harak as also examined the injuries on the body of 15 injured persons.

7. The defence examined Dr. L.K. Shukla (DW-1) who allegedly had examined Smt. Shakuntala Devi, Sri Dutt, Ramfal and Gokul Chand. Smt. Shakuntala Devi examined herself as DW-2.

9. On the aforementioned findings, Phool Chand and Kishan Chand were convicted under Sections 148, 302/149 and 307 of the Indian Penal Code and Bhagauti, Badadin and Sheo Prasad were convicted under Sections 147, 302/149 and 307/149 thereof. They were sentenced to undergo rigorous imprisonment for life, four years rigorous imprisonment for attempt to murder, two years rigorous imprisonment under Section 148 of the Indian Penal Code and one year rigorous imprisonment under Section 147 thereof.

14. From the materials brought on record, it is evident that the villagers never intended to dispossess Phool Chand. They were only resisting his right to raise any constructions thereupon. When the appellants together with Phool Chand and Accused No. 3 went to raise constructions, they were armed with deadly weapons. Accused Nos. 1 and 2 were armed with a double barrel gun and a single barrel gun respectively, the others were having lathis in their hands. They had hired labourers also with them. Only when they started raising constructions, the deceased and the prosecution witnesses objected thereto. It had come on record that they were not required to raise construction till the lis is determined. The accused persons did not listen to the said advice. They started abusing the members of the prosecution party. They were requested not to use abusive language. At that juncture, it is alleged that Accused Nos. 3, 4 and 5 asked Accused Nos. 1 and 2 to kill them or to assault them. Accused No. 1 went to the roof top of a house. He was holding a double barrel gun. He fired shots at least aiming at two persons standing at two different places. He must have fired some other shots also. Deceased No. 1 Ram Asrey was standing at the Galiyara whereas deceased No. 2 was standing near the wall towards the West of the said Kothi. It has been proved that Accused No. 2 also fired shots. 17 persons received injuries.

29. For the reasons aforementioned, we do not find any merit in this appeal which is dismissed accordingly.