- (1.) PARAS Nath and his son Shiv Shanker were convicted under Sec tion 302/34,i. P. C and 307/34,i. P. C. by Sri Govind Prasad, the then IVth Addl. Ses sions Judge, Allahabad as per his judg ment and order dated 16- 8-79 and were sentenced to undergo life imprisonment under the first count and three years R. I. under the second count. Aggrieved by the said judgment and order PARAS Nath preferred Criminal Appeal No. 2438 of 1979 and Shiv Shanker preferred Criminal Appeal No. 2632 of 1979.
(2.) IT appears that during the pendency of the appeal Paras Nath had died. His appeal was, therefore, abated as per order dated 16-9-1976, passed by Hon'ble S. K. Verma, J. and Hon'ble R. N. Ray, J. The appeal as against Shiv Shanker was heard by us and is being decided as under: The prosecution story briefly stated is as follows: Sri Satya Narain (PW-1) was a resi dent of village Barauna, Police Station Handia, district Allahabad. He had three sons viz. Paras Nath (accused since dead), Awadh Narain (deceased) and Ashok Kumar (P. W, 3 ). Accused appellant Shiv Shanker was the son of Paras Nath ac cused. Formerly they all were living together, but since Paras Nath used to quarrel regarding the property of his father Satya Narain and wanted to become separate, Satya Narain made a private par tition of his houses and agricultural plots. He divided all his fields into four portions. A boundary wall was carved out in all the fields held by him. Satya Narain divided his old house into two portions. He gave southern portion of his old house to Paras Nath and northern portion of the said house to Awadh Narain (deceased ). He gave his new house which was adjoining to the old house his third son Ashok Kumar, complainant (P. W. 3 ). He started living with Ashok Kumar and Awadh Narain. Sri Satya Narain was having a pumping set, a grove and cattle shed at a distance of about four Big has from his old house. He had constructed two rooms there. In one room, there was pumping set and the other room was used by him for the purpose of living. He was also having electricity connection, with which he used to run the pumping set. The room in which the pumping set was installed had its opening towards the west. There were electricity bulbs in front of both the rooms which kept burning during night for the purposes of safety and security of the cattle, machines and straw which was stored there. Satya Narain used to sleep over the pumping set. A thresher was also installed there. He used to sift his grains there. Regarding the partition of the houses as well as the agricultural plots there used to be a quarrel in between the wives of Paras Nath and Awadh Narain (deceased ). Earlier to the incident of this case Shiv Shanker, the son of Paras Nath had assaulted the deceased by means of a sword about four months before the date of this incident about which a report was lodged at the police station. Awadh Narain got his injuries examined by the medical officer. Paras Nath and his son Shiv Shanker (accused before this court) ob tained bail from the Court. Paras Nath did not sow any crop in his fields which were given to him in the private partition by his father. The deceased Awadh Narain had three daughters. His brother Ashok Kumar had one daughter, whereas Paras Nath had five sons. Paras Nath was not happy with the partition made by his father. He wanted to grab the entire property himself. He used to demand his share in the crop raised by the other brothers and father and asked his father to give 1/4th share in the crop of all the fields. His father Satya Narain told him that since he had partitioned his fields and since Awadh Narain and Ashok Kumar has raised their respective crops he had no right to demand any share in that crop. Awadh Narain (deceased) refused to give any share to Paras Nath in the crop raised by him. Satya Narain with a view to pacify the dispute in between his sons, gave two quintals of wheat relating to his share to Paras Nath. After 4-5 days Paras Nath again made a demand for the crop. He threatened that if Awadh Narain would not give any crop to him, he would be killed. Awadh Narain strongly refused to give any crop to the accused Paras Nath. Paras Nath fell annoyed and went away.
(3.) THE incident of this case took place on the intervening night of 15/16-5-78 at about 2. 00 p. m. At that time the harvested crop was stored on the pumping set. Awadh Narain (deceased), his brother Ashok Kumar (P. W. 3) and his father Satya Narain (P. W. 1) were sleeping over the pumping set. As usual an electricity bulb was burning there. Awadh Narain was sleeping on one Charpai and towards the north of his Charpai Ashok Kumar (P. W 3) and his father Satya Narain were sleeping. Hearing the cries of Awadh Narain his father Satya Narain (P. W. 1) got up and saw that his son Paras Nath and his grandson Shiv Shanker, son of Paras Nath were as saulting Awadh Narain by means of swords. When Satya Narain tried to rescue his son Awadh Narain, he too was assau lted by Paras Nath and his son Shiv Shanker. Hearing the cries Ashok Kumar also got up. He raised an alarm and attrac ted Ghina and Jiyaram, the villagers of the vicinity. Paras Nath and his son Shiv Shan ker ran away after causing the injuries to Awadh Narain and Satya Narain. Awadh Narain succumbed to his injuries on spot. A written report Ext. Ka-1 about this occurrence was lodged by Ashok Kumar (P. W 3) at police station, Handia at about 7. 05 a. m. on 16-5-78. The police station lay at a distance of about 8 kilometres from the scene of occurrence. Head Constable Devi Prasad Saxena (P. W. 2) prepared chick report and G. D. report on the basis of the first information report (Exh. Ka-1 ).;