Mukundakam Sharma, J. - (1.) This appeal is filed by the two accused who have been convicted by the Division Bench of the Allahabad High Court under Section 302 read with Section 34 of the Indian Penal Code (for short Rs. IPC) and sentenced to undergo imprisonment for life.
(2.) Originally, there were three accused persons, namely, Virendra @ Buddhu, Ram Asrey @ Tami and Girish Chandra @ Gappu and they were charged under Section 302 read with Section 34 IPC and Girish Chandra was also charged under Section 307 IPC. The Trial Court after recording evidence and hearing arguments acquitted all the accused persons of the charges leveled against them under Section 302 read with Section 34 IPC and Girish Chandra from the charges leveled against him under Section 307 IPC. Being aggrieved by the order of acquittal passed by the Trial Court an appeal was filed by the State of U.P. before the Allahabad High Court. The said appeal was allowed in part to the extent that acquittal of the accused - appellant in the present appeal was set aside and they were sentenced to undergo imprisonment for life under Section 302 read with Section 34 IPC, while the acquittal of third accused, namely, Girish Chandra was affirmed by the same judgment and order of the High Court of Allahabad. Being aggrieved by the said order of the High Court the present appeal was filed by the accused persons, in which notice was issued and an order was also passed rejecting the prayer for bail but with direction for expeditious disposal of the appeal. Pursuant to the said order, the present appeal was listed before us for hearing and disposal and we heard the learned Counsel appearing for the parties. In this appeal, learned Counsel appearing for the parties have taken us through the entire evidence on record in support of their contentions before us.
(3.) Before analyzing the submissions made before us by the counsel appearing for the parties, it will be necessary to set out the factual position leading to the filing of the present appeal by both these accused persons. On 05.10.1979 at about 4.45 p.m. Smt. Sarla Devi, wife of Rameshwar Dayal (hereinafter referred to as Rs. deceased) lodged a First Information Report at police station Shamshabad, District Farrukhabad alleging that Pyarey Lal who happened to be her grand father in relation had executed a sale deed of his landed property in favour of her son Pradeep Kumar but subsequently Het Ram and Sahdev got a deed of will regarding the same property allegedly executed by their maternal uncle Pyarey Lal in their favour. Therefore, in respect of the same piece of land, litigation was going on between her deceased husband on one hand and Het Ram and Sahdev on the other hand. Three months prior to the occurrence Sahdev was murdered and in connection with the said murder her son Pradeep Kumar, brothers Jaidev and Rakesh were falsely roped in as accused and Pradeep was still in jail at the time of murder of his deceased father. It was also alleged that proceedings under Section 107 and 117 of the Code of Criminal Procedure, 1973 (for short Rs. Cr.P.C) were also going on between the deceased on one hand and Het Ram on the other hand. It was further alleged that Het Ram and his son Virendra @ Buddhu were nursing grudge against the deceased. On the fateful day i.e. on 05.10.1979, early morning the deceased, the complainant Sarla Devi, P.W. 1 and their daughter Km. Guddi, P.W. 2 had gone for taking a holy dip into the river Ganges on the pious occasion of "Poornamashi". Thereafter, at about 10.00 a.m. while they were returning back after seeing Patavar in their field through the field of Raghubar Dayal and reached near mango tree standing in that field, Virendra alias Buddhu along with his cousins Ram Asrey alias Tami and Girish Chandra alias Gappu armed with country made pistols emerged from Patavar standing at the medh of Chhavinath and rushed towards the deceased. Ram Asrey was shouting that the deceased should be caught hold of as they had to take revenge of the murder of their maternal uncle. Upon hearing the said shouting the deceased tried to run for his life but he could not escape and Virendra and Girish caught hold of him under the mango tree and Virendra and Ram Asrey fired at him with country made pistols causing fatal injuries on him. On hue and cry raised by Smt. Sarla Devi and Guddi, Girish fired commanding them not to come forward and all the three accused ran away towards left. Sustaining fatal injuries at his head and eye the deceased died on the spot instantaneously. Thereafter on reaching of some of the co-villagers near the dead body Sarla Devi went to the village and got the report scribed by Deep Chand and then went to the police station Shamshabad situated at a distance of about 7 miles from the village. She lodged the First Information Report, upon which a criminal case was registered and investigations of the crime was taken up. During the course of investigation all the three accused persons were arrested. Autopsy was conducted on the dead body and post-mortem report was obtained. After completion of the investigation, the police submitted charge sheet against the three accused persons. The trial court framed charges against all the three accused persons under Section 302 read with Section 34 IPC and against accused Girish also under Section 307 IPC. The charges were read over to the accused and were explained to them in Hindi language. They pleaded not guilty and expressed their desire to be tried. Since the learned Counsel for the accused admitted under Section 294 of the Cr.P.C. the prosecution records from Ext. Ka-2 to Ext. Ka-18, the prosecution examined no other person as prosecution witness other than Smt. Sarla Devi the complainant as PW-1 and Km. Guddi as PW-2, who are stated to be eye-witnesses of the said occurrence. The learned trial court thereafter critically examined the depositions and the evidence on record and on appreciation thereof acquitted all the three accused persons of all the charges leveled against them. On appeal being filed, the High Court on re-appreciation of the evidence and records found that the grounds of acquittal as given by the learned trial court were unjustified and for the reasons recorded in the judgment set aside the order of acquittal passed against Virendra and Ram Asrey. The High Court, however, maintained the order of acquittal passed in favour of Girish Chandra. Consequently, the present appeal is filed by the two accused persons who were held to be guilty of the charge under Section 302 read with Section 34 IPC. ;