- (1.) V. Sahai, J. The appellants Ramesh Bux and Asghar Ali were convicted under Sections 302/201 and 404, Indian Penal Code and were sentenced to Life Imprisonment, four year's R. I. and three year's R. I. respectively. The sentences were directed to run concurrently. The aforesaid order was passed by Sri S. D. Rai Vlth Additional District and Sessions Judge, Barabanki in Sessions Trial No. 51 of 1978. Feeling aggrieved by their aforesaid convictions and sentences the appellants have come up in appeal before this Court.
(2.) THE prosecution case in brief, as contained in the F. I. R. lodged by Smt. Chamela wife of deceased Ram Lakhan Varma on 14-2-1974 at 8. 05 AM. at Police Station Mawai, District Barabanki the distance between the place of the incident and the aforesaid police station being three miles, is an under. The informant claims to be a resident of village Lodh Purwa hamlet of Amiha, Police Station Mawai, District Barabanki. According to her, between her husband Ram Lakhan Varma on one side and co- accused Mathura Prasad, Mahraj Bux and Ramesh who are said to be sons of aforesaid Mathura, on the other, a quarrel took place about three years ago because the latter had made a false F. I. R. pertaining to theft against Ram Lakhan verma. It is alleged that the aforesaid persons had picked up Bhoosa of the deceased. For sometime Ram Lakhan Varma and the accused persons were not even on talking terms, but recently they started coming to the informant's house. On Saturday night at about 9 P. M. appellant Ramesh is alleged to have taken the deceased to his house and ever since then the deceased did not return. In the morning, the informant inquired but was told that in night the deceased had gone back home. When till Monday the deceased did not return, the informant sent some people in relationship to enquire about him. It is alleged that co-accused Chedi Kurmi told the informant that a corpse was lying in Raghunath Kurmi's field situate to the west of the village. Nervously the informant went and discovered that corpse to be that of her husband. Her husband is alleged to have been carrying Rs. 800/- in his coat but that was missing. It is also alleged that Sant Bux Kurmi, Badal Kurmi, Mata Prasad Kurmi and Ram Saran Kurmi saw her husband Ram Lakhan Varma with Ramesh, Mathura Prasad and Mahraj Bux going towards west of the village. It is also alleged that co-villagers Bechu Lal Kurmi and Dularey Chamar also saw Mathura Prasad, Mahraj Bux and Ramesh with Ram Lakhan Varma. It is further alleged that Pancham Kurmi and Gaya Prasad Kurmi saw Mathura, Mahraj Bux and Ramesh returning towards their house. It is stated in the F. I. R. that Mathura Prasad, his sons Mahraj Bux and Ramesh after killing her husband, severed the head from the body. The informant alongwith the Chaukidar went to Police Station Mawai and lodged the F. I. R. in which the facts enumerated above are mentioned. The F. I. R. had been lodged in the presence of the Station Officer of Police Station Mawai (P. W. 9) Ved Prakash Singh. He took the investigation of the case in his hands. After recording statements under Section 161 Cr. P. C. etc. preparing the inquest, site plan and challan lash and sending the corpse for autopsy, he started searching the accused, On 19-2-1974 he arrested appellant Asghar Ali, Ramesh, Mathura and Mahraj Bux. At the pointing out of Mathura (Mathura died during the course of trial), he recovered blood stained Gandasa which was concealed in Khar lying to the north of Mathura's house. Ex. Ka-1 is said to be a recovery memo of the aforesaid Gandasa. Thereafter the same day at the pointing out of appellant Ramesh and Mahraj Bux (Mahraj Bux died before committal of the case) he recovered blood-stained clothes which had been concealed by the aforesaid persons in a pit behind their house. Ex. Ka-2 is the recovery memo of the aforesaid clothes. At the pointing out of appellant Asghar Ali, the Investigating Officer discovered the place of the incident and from there recovered the jaw, the teath, watch and some coins which are alleged to belong to the deceased. He is also alleged to have recovered plain and blood-stained earth. The Investigating Officer sent the Gandasa, bloodstained clothes of the accused, blood-stained earth etc. to the Chemical Examiner whose report is that the aforesaid items contained blood. Strangely enough since there is not report of the Serologist obviously it cannot be said as to whether the blood found was human or not. Two autopsies of the dead body of the deceased Ram Lakhan Varma; one pertaining to his body and one pertaining to his head were conducted by Dr. K. K. Agarwal (P. W. 7) On the body of the deceased, the Doctor found four incised wounds and on the head of the deceased seven incised wounds and one injury namely injury No. 6, which has been described by him as left-ear hanging with a tag of skin.
(3.) THE case was committed to the Court of Sessions against Mathura Prasad and the appellants. As stated earlier, during trial in the Court of Sessions, Mathura Prasad died. Thus only two persons namely, the appellants were convicted and sentenced. THE appel lants Ramesh and Asghar Ali were charged under Section 302i. P. C. and in the alternative under Section 302 read with Section 34 I. P. C. THEy were further charged under Section 201, I. P. C. and under Section 379 I. P. C. and in the alternative under Section 404 I. P. C. THE accused pleaded not guilty to the charges levelled against them and claimed to be tried. THEir deference was that they have been falsely implicated in the instant case by the witnesses who were associates of the deceased Ram Lakhan Varma. Both the appellants denied that any recoveries were made at their pointing out. During trial prosecution adduced circumstantial evidence against the appellants. The circumstances which the prosecution adduced during trial against the appellants were (a) motive, (b) deceased being last seen with the appellants and (c) evidence under Section 27, Evidence Act in the form of recoveries.;