POONAM SRIVASTAV,J. - (1.) THE instant appeal was preferred by two appellants namely Sita Ram and Manohar. Appellant no.1 Sita Ram is reported to be dead. Appeal in respect of appellant no.1 stands abated vide order dated 28.10.2006. Appellant no.2 Manohar was convicted by Vth Additional District & Sessions Judge, Jalaun at Orai, vide judgment and order dated 25.4.1981 in S.T. No.131 of 1980 under Section 304 Part II I.P.C. and sentenced to five years R.I. In the event of default in payment of fine, six months further rigorous imprisonment.
(2.) MS . Anita Srivastav, Advocate, was appointed amicus curiae by this Court vide order dated 23.10.2009. She is present in Court to argue the instant appeal on behalf of appellant no.2 Manohar. Occurrence is alleged to have taken place on 16.11.1978 at 3 p.m. in village Nasirpur, P.S. Churkhi, District Jalaun. N.C.R. was lodged by Jaidev Singh PW-1 on the same day at 8:30 p.m. at Police Station Churkhi, District Jalaun. Police Station is situated at distance of eight kilometres. Injured Govind Singh died on 17.11.1978. Thereafter, an application was given by his father Roshan Singh PW-4 to Superintendent of Police, Jalaun at Orai. The admitted facts in short are that in village Nasirpur within circle of Police Station Churkhi, deceased Govind Singh had an agricultural field known as 'MARHAI HAR'. The north of this field adjoins field of accused persons. PW-1 Jaidev Singh complainant is cousin of deceased Govind Singh. PW-3 Surendra Singh is first cousin of deceased. The accused persons, deceased and two witnesses named above jointly owned this 'MARHAI HAR'. However, there was some mutual arrangement private partition by which northern 1/3 part of 'MARHAI HAR was given to the accused persons. Both parts of fields are irrigated by an irrigation canal (Gool) which flows from the south to north. It turns from field of deceased then flows through boundary of his filed, and reaches field of the accused persons. Both fields are irrigated by this canal.
(3.) IT is further admitted that relations of accused persons with the deceased and his family were strained. There was some dispute between one Nanhi Bai on one side and father of deceased and his uncles on the other side regarding ownership of about 30 Bighas of land. Nanhi Bai was widow of Bhoop Singh and claimed ownership of the land of Bhoop Singh as his heir. Roshan Singh father of deceased and his brothers claimed ownership on the same land on the basis of a Will, which is said to have been executed by Bhoop Singh in their favour. A litigation was going on between Nanhi Bai and these persons. Accused Sita Ram was doing Parvi of the case of Nanhi Bai. This case was decided by the trial court in favour of Nanhi Bai after an incident in question i.e. 27.11.1978. This is also not denied that Sita Ram appeared as a witness for Nanhi Bai in this case on 29.8.1977.;