- (1.) G. P. Mathur, J. Criminal Appeal No. 1535 of 1979 has been filed by Har Datt and Criminal Appeal No. 1536 of '979 has been filed by Shyam lal and Raghubir against the judgment and order dated 21-4-79 of IVth Additional Sessions Judge, Kanpur in S. T. No. 162 of 1978 whereby they have been convicted under Section 302, I. P. C. read with Section 34, I. P. C. and have been sentenced to imprisonment for life.
(2.) ONE Kamakhya Tamboli was resident of village Bairi Sawai, P. S. Shivali in the district of Kanpur. He had two sons namely Shiv Datt and Har Datt (accused) and two daughters Smt. Shanti and Smt. Shiv Dulari. Shyam lal and Raghubir accused are sons of Shiv Datt. Smt. Shanti and her son Rajjan lost life in the incident. P. W. 2 Nanhey lal is son of Smt. Shiv Dulari. P. W. 1 Sher Ali, Chaukidar of village Bairi Sawai lodged a First Information Report at 6. 00 p. m. on 15- 1-77 at four miles distant police station Shivali stating that Rajjan and his mother Smt. Shanti resided in his village. Rajjan's wife had gone to her parental home. The outer door of Rajjan's house was locked and he and his mother were not visible since the morning of preceding day. A larger quantity of blood was lying in the courtyard of the house and it appeared that both of them had been murdered. There was enmity between Rajjan on one hand and three accused on the other hand on account of litigation over land which the former had lost. Rajjan was not giving possession of the land due to which the murder had been committed. The accused were absconding from the village. The F. I. R. was lodged in presence of P. W. 2 Lallan Raj Station Officer, P. S. Shivali who came to the spot and commenced investigation. After completing the same, he submitted charge-sheet against all the three accused on 7-3-77. The case was committed to the Court of Sessions by the Chief Judicial Magistrate on 30-3-78. The accused were charged under Section 302/34, I. P. C. by the learned Sessions Judge to which they pleaded not guilty. The prosecution in support of its case examined nine witnesses in all. The accused in their statements under Section 313, Cr. P. C. denied the prosecution case and pleaded that they had been implicated on account of enmity. Har Datt stated that when he came to village, he found the house to be locked. He then proceeded to Sasural of Rajjan and then went to P. S. Shivali alongwith his father-in-law and narrated the incident. The Station Officer came to the village alongwith him but subsequently obtained of report from the Chaukidar and sent him to jail. Shyam lal and Raghubir stated that no litigation between them and Rajjan took place. Their father died in the life- time of their grand father. After the death of their father, their mother remarried in Etawah. They went to their mother's place and started earning livelihood as labourers. They had come to the village to see their house and while they were sleeping in the night, the police arrested them. They had not received any share in the property of their father or grand father and that is why they had left the village.
(3.) THERE is no eye witness of the incident and the case against the accused is based upon circumstantial evidence. The prosecution has given evidence to show that the accused had motive to commit the crime. P. W. 1 Sher Ali has stated that litigation regarding the land was fought between Shiv Datt (father of Shvam lal and Raghubir accused) and Rajjan-deceased which was decided in favour of Shiv Datt. Bui, Rajjan did not leave the possession of the land. When he was asked in cross-examination as to who informed him about the litigation, he stated that as he was residing in the same village he knew that the litigation regarding agricultural land was going on in Kanpur and the same was pending till a year before his statement. When cross-examined on behalf of Shyarn lal and Raghubir-accused, he stated that Shiv Dutt died about 20 years back. Later on he said that he had wrongly stated that litigation was fought with Shiv Datt and the correct fact is that Rajjan fought with Har Datt-accused and no litigation took place with Shiv Datt as he was dead nor with Shyam lal and Raghubir accused. The witness has contradicted himself regarding the litigation which is alleged to have taken place with Rajjan-deceased and thus his statement is not reliable.;