K.C.BHARGAVA, J. - (1.) In this case there were two appellants, namely Bhagwan Din and Prabhu Dayal alias Prabhoo. Prabhu Dayal alias Prabhoo died during the pendency of the appeal.
(2.) Bhagwan Din and Prabhu Dayal alias Prabhoo (since dead) were convicted by III Additional Sessions Judge, Hardoi by judgment and order dated 11/09/1980 under S.302 read with S.34 and S.201 of the Indian Penal Code and sentenced to each of them to undergo imprisonment for life and five years rigorous imprisonment and a fine of Rs. 300.00 respectively under each count and in default of payment of fine to undergo further imprisonment for one year. The sentences were made to run concurrently.
(3.) According to the prosecution on 13-4-1979 at about 1-00 p.m. Bhagwan Din alias Bhagannu and Prabhu Dayal alias Prabhoo appellants came to the house of the complainant Sumer, the father of the deceased Shyam Lal, and took Shyam Lal along with them on the pretext of cutting the grass. Shyam Lal at that time was aged about 22 years and he was taken away by the accused-appellants in the presence of his father Sumer, his mother Nanhi and his wife Smt. Ramguni. Both the accused-appellants and Shyam Lal deceased used to gamble together and the appellants had also taught the deceased to commit thefts. Sometime before the incident there was a dispute between these three persons about the distribution of theft property and thereafter the dispute was patched up. The complainant's son, Shyam Lal, took one Khurpi and one old Dhoti of his wife and went away along with the accused-appellants to cut the grass, on 13-4-1979. The complainant waited for Shyam Lal for a long time in the night but Shyam Lal did not come back. Thereafter they went to sleep. In the morning they tried to search Shyam Lal but he was not available. Ram Bharosey (P.W.4) who is resident of the complainant's village came and told on 14-4-1979 in the evening that the accused appellants and the deceased Shyam Lal were seen cutting the grass near the tube well of Ram Bharosey. They were cutting the grass on the eastern wing of the tube well at about 6-00 p.m. Thereafter they were not seen by any body. The complainant thereafter again went for search of the deceased Shyam Lal and when he reached in the grove of Ram Autar which is towards north-west of the abadi he saw some blood stains on the pucca boundary of the tube well. He got suspicious and after bringing Kanta took out one piece of Dhoti which came out of the well inside the Kanta. He also came to know that something heavy was tied in the dead body which could not be pulled by him. He got suspicious that Bhagwan Din and Prabhu Dayal accused-appellants had killed his son and had thrown his dead body into the well the same night. He got a report written from Arun Kumar and lodged it at the police station which is Ext. Ka-1. He also took with him the cloth piece of the Dhoti which came out of the well. The report of this incident was scribed by Constable Ashfaq Husain (P.W.2). When the report was lodged Bhagwati Prasad S.I.(P.W.11) was present at the police station Shahabad. He started investigation of the case and took the statement of the complainant Sumer at the police station. Thereafter he went to the well and made arrangement for taking out the dead body. The dead body of Shyam Lal was taken out of the well which was recognised. He prepared the Fard of the clothes present on the body of the deceased and other articles. He also took blood stained and simple plaster from the boundary of the well and prepared Fard. Thereafter he recorded the statements of the witnesses. He also prepared the site plan and after completing the investigation he submitted chargesheet against the accused-appellants which is Ext. Ka-2. Post mortem examination of the deceased was conducted on 16-4-1979 by Dr. A.N.Singh (P.W.10). At the time of examination the deceased had died 2-3 days before. The dead body of the deceased was in the advanced stage of decomposition. Abdomen was distended. Penis and scortum were cut. Hairs were loose and could be easily pulled out. The skin of hand and feet was black showing corrogated and sodden appearance. Loope of bowels were coming out from the wound of abdomen. On external examination he found the following ante mortem injuries on his person :- 1. Incised wound 3 cm. x 1 cm. x cranial cavity deep on left side of head, 7 cm. above the left ear. Margins were clean cut. 2. Incised wound 2 cm. x 1 cm. x cranial cavity deep on the left side of the forehead 2.5 cm. above the left eyebrow. Margins were clean cut. 3. Incised wound 2 cm. x 1 cm. x skin deep on the tip of nose.;