M. C. Jain, J. - (1.) -The State has come up in appeal against the judgment and order dated 1.5.1980 passed by Sri P. C. Saxena, the Sessions Judge, Pilibhit in S.T. No. A-78 of 1979 acquitting the two accused-respondents Ram Krishna alias Ram Kishan and Ram Lal (brothers) of the charge of Section 302, I.P.C. and Section 302, I.P.C. read with Section 34, I.P.C.
(2.) THE appeal was admitted on 1.12.1980 and bailable warrants were issued against accused-respondents but the same could not be executed. Under order dated 2.9.1992, non-bailable warrants were again directed to be issued against them. But they could not be arrested and the Chief Judicial Magistrate, Pilibhit reported that both of them had disappeared after disposing of their movable and immovable property and were not at all available. Under the circumstances, we appointed Sri Apul Misra as amicus curiae to argue out the appeal on behalf of accused-respondents. We have heard Sri M. C. Joshi, learned A.G.A. on behalf of State in support of the appeal and Sri Apul Misra, amicus curiae for the accused-respondents. The incident took place on 11.11.1978 at about 9.00 a.m. in the fields of village Jaskaranpur, Police Station Bisalpur, district Pilibhit and the F.I.R. was lodged the same day at 10.15 a.m. by Ashwani Kumar P.W. 3 son of the deceased who claimed himself to be an eye-witness. Tilak Raj was the brother of the deceased Bodh Raj who had taken some land on lease from Gram Samaj in respect whereof a litigation was pending between Tilak Raj and accused-respondents. Bodh Raj was doing pairvi for his brother in that case and on account of this litigation the accused-respondents allegedly bore enmity against him (Bodh Raj). Bodh Raj resided in village Bisalpur and had land in village Jaskaranpur. He had sown paddy crop in his said land which was ripe for harvesting at the time of occurrence. He with his elder son Ashwani Kumar P.W. 3 went to the village Jaskaranpur early in the morning at about 5.30 a.m. on the day of occurrence and reached there at about 6.30 a.m. Witnesses Suleman C.W. 1 and Jhabbu C.W. 2 were in his employment and were assisting him in the said harvesting. At about 9.15 a.m., Anil Kumar P.W. 5 younger son of the deceased had also come there with the newspaper of that day. Bodh Raj laid down on the Payal spread on the ground and busied himself browsing the newspaper. Suleman was sent to the village to bring scale and weights. Ashwani Kumar P.W. 3 and Jhabbu were in the neighbouring field. As per the prosecution case, the two accused suddenly appeared there. Ram Krishna alias Ram Kishan was armed with banka and Ram Lal had a gandasa. They started assaulting Bodh Raj with their respective weapons. The attack was so sudden and furious that Bodh Raj could not even get up and died at the spot in that very posture. Ashwani Kumar P.W. 3, Jhabbu, Rajiv Kumar P.W. 4 and Ram Murti of Bisalpur allegedly witnessed the incident. The reason of presence of Rajiv Kumar P.W. 4 and Ram Murti at the spot was said to be that they wanted to purchase some land in that village and Bodh Raj told them about the availability of some land. They had, therefore, come to him. When they were at some distance from the place of occurrence, they heard cries and consequently rushed to the place of occurrence. They witnessed the incident and recognised the assailants whom they knew from before. Suleman C.W. 1 was allegedly returning from the village. Though he did not see the actual incident of murder, but saw the accused running away from the side of the place of occurrence with the weapons of assault in their hands. This was briefly the prosecution case.
(3.) ON the lodging of the F.I.R., investigation was taken up as usual by S.O. Devendra Swarup Gautam P.W. 7. Reaching the spot, he, after completion of formalities, sent the dead body for post-mortem and took other steps related to the investigation which are not required to be related in detail. Post-mortem over the dead body of the deceased was conducted by Dr. R. C. Maheshwari P.W. 1 on 12.11.1978 at 10.15 a.m. The deceased was about 50 years of age and about one day had passed since he died.;