- (1.) Appellants Baijnath, Jagar Nath and Hari Nath alias Had have been convicted by the Sessions Judge, Ghazipur for the offence punishable under Section 302/34 IPC. Each of them have been sentenced to undergo life imprisonment on that count. The Appellants have now approached this Court by filing this criminal appeal.
(2.) The prosecution case, shortly stated, is that one Thagga, resident of village Salarpur, Police Station Karandah District Ghazipur, was married to one Smt. Jiria. A son named Sewak was born from this union. Thereafter Thagga died and Smt. Jiria was taken as a wife by Sohar, deceased in the instant case. This Sohar was also resident of village Salarpur. A son Hawaldar was born to Smt. Jiria from Sohar deceased. The Appellants are alleged to be collaterals of Thagga. They had got a joint house with Thagga in village Salarpur. One-half of the house was in possession of the Appellants while Thagga in his life time was possessed of the remaining house. It is alleged that the Appellants sold their half share of the house after the death of Thagga and migrated to village Maudhia. It is stated that three or four days before the occurrence which is said to have taken place in the night between second and third of June, 1973 in a grove situated in village Salarpur, the Appellants again returned to the village and they wanted to sell the remaining half of the house which belonged to Thagga. They had also expressed a desire to take Sevak son of Thagga with them. Sohar resisted this attempt on the part of the Appellants and he even asked them to take money in respect of the half portion of the house which belonged to Thagga. It is then stated that Sohar was sleeping in a grove at the time of the occurrence which is said to have taken place at 1-00 a.m. He woke up on hearing some suspicious sounds. He flashed his torch and saw the three Appellants armed with Gandasa and spears. Sohar raised an alarm but in the meanwhile he had been surrounded by the Appellants who assaulted Sohar with their respective weapons. On hearing the cries of Sohar, Smt. Jiria and Ram Narain, brother-in-law of Sohar, also arrived at the scene of occurrence. However, before the arrival of the witnesses, the Appellants made good their escape.
(3.) It is then stated by the prosecution that Sohar was carried to the police station Karandah by a number of persons on a Charpai. The above version of the incident was narrated by Sohar and was taken down by Head Constable Haridwar Rai (P. W. 4). Before the narration of events could be completed by Sohar, he breathed his last and died. The first information report was recorded by Haridwar Rai, Head Constable in the presence of Nagina Prasad Singh, S. I. (PW 5). The dictation of the first information report was then stopped and a note was affixed at the end of the first information report stating the fact that Sohar had died on the charpai on which he had been brought in the presence of the witnesses who had brought him from village Salarpur. It was further stated that the first information report had been recorded in the presence of those witnesses and the statement recorded in the first information report had been read over to them. Below this note are the signatures of Gopal Kohri son of Gauri Deen, Dayal son of Lachhman, Sunder Yadav son of Dal Bhanjan, Hari Shanker son of Sheo Chandra, Satya Narain son of Gyan, Chhakaudi son of Ram Das and Ram Narain son of Sukh Nandan. From what has been stated above, it follows that there was no direct or circumstantial evidence to connect the Appellants with the commission of the offence with which they were charged except the alleged dying declaration contained in the first information report.;