- (1.) V. P. Mathur, J. The three appellants namely Kateshwar, Abhinandan and Rajeshwari are very closely related to each other. The first two are real brothers sons of Gaya Prasad. The third Rajeshwari is their nephew. Mr. S. N. Mishra, the then and Additional Sessions Judge of Basti has by his judgment and order dated 13-6- 1973 convicted Kateshwar and Abhinandan on a charge under Sections 302/34,i. P. C. and sentenced each one of them to imprisonment for life. Rajeshwari was found guilty for the offence punishable under Section 302,i. P. C. simpliciter. He was also accordingly convicted and sentenced to imprisonment for life. All the three have now come up before this Court through this appeal.
(2.) THE following pedigree set up by PW 1 Murli and not disputed by the defence, will be relevant for a proper appreciation of the facts of this case : Kalpi Pratap Sheopal Dhanpal x Gaya Prasad Jasai Kateshwar Abhinandan Raghunandan Achhaibar Smt. Dukhna (appellant No. 1) (appellant No. 2) / -wife (daughter) Rajeshwari (Smt. Bhanumati) Married to (appellant No. 3) PW 1 Murli THE deceased of this case is Smt. Bhanumati and the charge against the appellants are in respect of her murder, which allegedly took place on 13-2-1971 at 5p. m. in villages Basdilia which lies within the area of police station Dumeriaganj. District Basti. THE first information report was lodged by Murli (PW 1) at 10. 10p. m. in police station Dumeriaganj, which is eight miles away from the scene of occurrence. It is said that Achhaibar died some time in the year 1976 and Smt. Bhanumati as his widow called upon SMTP, Dukhan's husband Murli to come to her assistance and to look after her cultivation and other affairs. In this manner Murli was living at the house of Achhaibar and looking after his cultivation, which was inherited by Smt. Bhanumati. Gaya Prasad father of appellants Nos. 1 and 2 and the grandfather of appsllnnt No. 3 who was a collateral of Achhaibar, started mutation proceedings claiming that his name should be mutated in place of Achhaibar. No documentary evidence has been placed on the record and, therefore, we do not know as to what plea had been taken by Gaya Prasad in support of his claim to Achhaibar's agricultural land. This is, however, not disputed that his mutation application was opposed by Smt. Bhanumati and was dismissed. Then Smt. Bhanumati moved an application for mutation of her name. There is also some evidence to the effect that Smt. Dukhna wife of Murli (PW 1) and sister of Achhaibar also started mutation proceedings. Again there is nothing on the record to show as to on what basis she was claiming mutation in respect of the property of Achhaibar. By the way it may tie made clear at this stage that in view of Sections 171 and 172 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, Bhanumati will inherit an interest in the holding of her husband as a widow and on her death the property will devolve on Achhaibar's heirs in the order or succession given in Section 171 and it will be clear that a married sister who is described in clause (m) will be preferential heir as compared to other collaterals like Gaya Prasad etc. It is, however, admitted that after losing the mutation case before the Tehsildar, Gaya Prasad did not sit silent. He opposed the mutation petition of Smt, Bhanumati and when the Tehsildar decided it in her favour, Gaya Prasad moved the Sub-Divisional Magistrate, Dumeriaganj by way of revision (appeal ). This case before the Sub-Divisional Magistrate was pending when this occurrence took place and 13-2-1978 was the date fixed for the appearance of the parties before that court. The contention of the prosecution is that Smt. Bhanumati accompanied with Murli who was looking after her and her property, attended the court of Sub-Divisional Magistrate. The order-sheet has been placed on the record. It appears that the case was adjourned because the Magistrate was otherwise busy and another date was given. It is contended that Murli and Bhanumati started back for their village. They took a bus from Dutneriaganj. There was no regular stoppage of the Bus at their village Basdilia but the nearest Bus-stop was at Daboli Pokhra (pond), where these two persons alighted from the Bus to take the route up to their village on foot which was about one and a half miles. Alongwith them some other persons including (PW 2) Tirath Singh who had also gone to Dumeriaganj and Moti Ram (PW 3) who was returning from Sahilpur, also got down from the same Bus at the same bus-stop and accompanied them on the rasta that led to Dumeriaganj and also to Karaula. One Moti Singh (PW 4) had come to the pond near Sriram Kurmi's grove to ease himself. He also heard cries when the occurrence took place and rushed towards the scene of occurrence.
(3.) IT is contended that the three appellants of this case were hiding either in the grove of Sriram Kurnai or in the arhar field of Kallu which is just adjacent to Sriram's grove and when Smt. Bhanumati along with PW t Murli, PW 2 Tirath Singh and PW 3 Moti Ram was passing through the kachcha rasta leading to Basdilia, they suddenly emerged out and encircled her. Appellants Kateshwar and Abhinandan caught hold of the lady by holding her hands in order to pin her down and Rajeshwari who was armed with a country made pistol fired on her head from behind form a very close range. The effect was instantaneous. Smt. Bhanumati was fatally injured and fell down. The witnesses cried out. Then Moti Singh (PW 4) who had just finished easing himself, rushed. He saw the three appellants running away through the grove of Sriram towards the north east. He found that one of them namely Rajeshwari was possessed of a pistol. The first information report of the matter was dictated by Murli to Tirath Singh who scribed it and with it Murli reached the police station Dumeriaganj where he handed it over to the Head Constable clerk who prepared the formal first information report Ext. Ka-2 and registered the case at 10. 10 p. m. The Investigating Officer did not take time to reach the scene of occurrence and he started investigation at once. He reached the place of occurrence in the night and he started investigation at 7 a. m. on 14-2- 1978. He prepared the Panchayatnama Ext. Ka-5 and took the deadbody into custody and sent it in sealed condition on 14-2-1978 at about 1. 30 p. m. to the mortuary.;