Palok Basu, J. - (1.) THE aforesaid three appeals have been filed against the judgment and order of Sessions Judge, Non-Metropolitan Area, Kanpur, dated 26-11-1977 convicting the appellants Ghafoora, Sri Narain and Brijesh Kumar under section 302/120-B. IPC and 201 IPC and sentencing them there under to imprisonment for life on the first two counts and five years R. I. on the second count. Appellant Sharif was, however, convicted under section 201 IPC only and sentenced to five years' R. I. and acquitted of the charge under section 302 IPC.
(2.) THE charge against the appellants was that they had entered into a criminal conspiracy for commuting the murder of Sushil Kumar on 26-2-1974 at the shop of Brijesh Kumar and then actually committed the murder of Sushil Kumar sometime between 26th and 27th February, 1974, in Bilhaur whereafter they made attempts to disappear the evidence punishable under section 120-B, 302 and 201 IPC. The prosecution case is that the deceased Sushil Kumar and PW 13 Devendra Kumar are sons of PW 1 Bisbeshwar Nath who had an ornaments shop and Ice candy Factory in Bilhaur, looked after by both the sons. The shop used to be closed down by about 8 or 9 P. M. which used to be opened daily in the morning by the two sons at about 7 or 8 A. M The motor cycle bearing Registration No. U. P. 1-9180 belonged to Devendra Kumar. The appellant Brijesh Kumar is the son of the nephew of informant Bisheshwar Nath PW 1. The appellant Sri Narain is the uncle (Phupha) of the appellant Brijesh Kumar. They and Sushil Kumar deceased were on friendly terms. Brijesh Kumar had a machinary shop of which PW 8 Onkar Shukla is the owner. The other appellants are also residents of Bilhaur being frinedly with Brijesh Kumar and Sri Narain. The further case of the prosecution is that a few days prior to 26-2-1974 Brijesh and Sri Narain had demanded Rs. 1000.00 from Bisheshwar which was refused and this caused annoyance. Bye-election to the Council took place on 26-2-1974 In which the deceased Sushil Kumar supported a candidate named Moti Lal in which he remained busy till about 1 P. M. and then went to his house for the meals and again came to the shop with Devendra Kumar Appellants Brijesh and Sri Narain came to the ornaments shop at about 5.30 P. M. on 20-4-1974 end had a conversation with Sushil about bringing a tyre from Araul whereafter they left. They again came at 9 30 P. M. and took Sushil Kumar a little aside to talk to him and thereafter went away along with Sushil Kumar on the motor cycle bearing number U. P. 1-9180. Devendra was told by Sushil that he was going to bring the tyre from Araul and would be back soon and then go to their hose Devendra waited in vain and slept in the shop As Sushil (did not turn up Bisheshwar Nath contacted Devendra in the shop in that morning when the latter told him what had happened in the preceding night. A search commenced and the motor cycle U. P. 1-9180 was found standing near the shop of Brijesh in Ashiq Bagh having portion of the glass of the headlight broken. They were told by PW 10 Ramadhin a neighbouring shop-keeper of Brijesh, that at about 3.30 A. M. he had got up on the sound of the Shutters of Brijesh's shop. Brijesh thereafter bed been seen by him attempting to start the motor cycle which did not ingnite, at which Brijesh closed the shop and went towards the town.
(3.) INSPITE of further search Sushil could not be found out and consequently Bisheshwar Nath lodged an FIR at Police Station Bilhaur on 27-2-1974 at 7.30 P. M., proved as Ex. ka-1. The corresponding general diary entry has been proved as Ex ka-2. Pw 14 Ram Nath Tyagi, S. I. commenced investigation on 28- 2-1974 and reached the shop of the informant at 9 A.M. and interrogated some witnesses He also Inspected the shop of Brijesh and found motor cycle U. P. I.-9180 standing there with a broken head-light. A memo was prepared concerning the recovery of the motor cycle proved as Ex. ka-5 and handed over to informant for safe custody. A site plan Ex. ka-8 was also prepared. He searched the houses of Ghafoora, munna and Sharif, but none could be found.;