Imtiyaz Murtaza, J. - (1.) PRESENT appeal has its genesis in Sessions Trial No. 64 of 1999 wherein it would appear, four accused persons namely Basant Lal Dubey, Lalji Dubey, Gyan Prakash Dubey and Om Prakash Dubey were tried by learned Additional Sessions Judge (E. C. Act) Mirzapur for offences under Sections 302/34 and 504, I.P.C.
(2.) BY means of judgment and order dated 26.5.2008, the learned trial Judge recorded verdict convicting appellants under Section 302/34, I.P.C. and awarded capital punishment and a fine of Rs. 20,000 each with default stipulation. A composite appeal has been preferred by the appellants impugning therein the judgment and order of the learned Sessions Judge dated 26.5.2008. The occurrence leading to the prosecution case dates back to 26.11.1998. The F.I.R. the author of which is Kamla Kant Dubey resident of village Datti Patti P. S. Vindhyachal district Mirzapur was lodged which was registered at Case Crime No. 389 of 1998 under Sections 302/34 and 504, I.P.C. alleging therein Brahma Deen, his uncle (husband of paternal aunt) who was childless and was a native of village Bhaidpur, had shifted and started living in village Datti Patti for the last five years. He had executed sale deed of his agricultural land admeasuring 10 bighas in favour of Rama Kant Dubey for a sale consideration of Rs. 1,50,000. It is further alleged that he (deceased) also executed a second sale deed of land admeasuring six bighas situated in village Jopa in favour of Sushil Kant for a sale consideration of Rs. 1 lac. It is further alleged that since accused Basant Lal had a covetous eye over the land, he set up a person personating as Brahma Deen and played fraud of obtaining sale deed in relation to self same agricultural land as aforesaid in his favour. This triggered a civil dispute and litigation was being slugged out in civil court Mirzapur besides proceedings for mutation of names in the revenue record. On account of pending litigation, it is further alleged, accused Basant Lal and his sons namely Lalji, Om Prakash and Gyan Prakash were nurturing vengeance against his family and his uncle Brahma Deen Dubey and as a sequel to animosity as aforesaid, accused Basant Lal and others had done to death his father on 16.11.94 while his father was on way back to his house after ploughing the field. The aforesaid civil litigation was lingering on the date of commission of offence in which Brahma Deen was the only pivotal witness who could turn the scale of justice by his deposition and on the day of occurrence, ostensibly with the intention of annihilating the said witness from the scenario, the accused persons hatched the plan of murdering Brahma Deen. According to further allegation, on 26.11.98 while Brahma Deen was on way to a place near the orchard to answer the call of nature at about 8 a.m, he was seen by the accused persons who were seated on tractor. Upon seeing Brahma Deen Dubey, Basant Lal yelled, exhorting his sons that he (Brahma Deen Dubey) be done to death and he should not escape. Upon being instigated, Om Prakash who was at the driver's seat, swivelled the tractor and ran it over him. To be doubly sure that Brahma Deen Dubey does not escape alive, Om Prakash drove the tractor over the deceased many a time as a result of which Brahma Deen Dubey died instantaneously. The informant, it is further alleged, was also on way back to a place near the orchard for answering the call of nature alongwith the deceased and upon seeing the incident, he cried for help. However, the accused persons escaped with the tractor from the scene of occurrence. The report of the occurrence was lodged at P.S. Vindhyachal at 9.30 a.m on 26.11.1998.
(3.) THE investigation of the case, it would appear, was taken over by S.O. Om Prakash Singh and he, to begin with, recorded the statement of informant at the police station, and thereafter proceeded to police station alongwith S.I. Mushtaq Ahmad and others. THE panchnama was prepared by S.I. Mushtaq Ahmad on the instruction of S.O. Om Prakash Singh. THEreafter, the papers were processed for post mortem of the deceased and the dead body was entrusted to Constable Sanjay Kumar for being escorted for post mortem examination. THE Investigating Officer thereafter prepared the site plan, and collected blood stained and simple earth and sealed the same accordingly. THE Investigating Officer also took in possession the Bamboo stick, lota, slipper etc. and prepared memo Ex. Ka-16. In the course of investigation, the Investigating Officer seized the tractor involved in the occurrence on 27.11.1998 and one of the accused was also taken into custody for interrogation. On 28.11.98, the Investigating Officer recorded statements of witnesses of inquest. THEreafter, he came to know that the other accused persons had surrendered in the Court and therefore, their statements were also recorded in jail. After completing the investigation, the charge-sheet was submitted in the Court. THE case was committed to the Court of Sessions on 24.3.1999. The post mortem on the dead body of the deceased was conducted by Dr. K. N. Mehrotra on 27.11.1998 at 12.30 noon and following ante-mortem injuries were found on the person of the deceased : 1. 5 cm. x 7 cm. lacerated wound eye and forehead, eye ball is protruding and bursted. 2. 7 cm. x 7 cm. contusion with swelling on left eye. 3. 19 cm. x 4 cm. abrasion on front of right knee and upper-leg. 4. 9 cm. x 7 cm. abrasion left upper leg at a medial aspect 13 cm. below knee joint. 5. 3 cm. x 1 cm. abrasion over posterior of right lower arm. 6. 5 cm. x 7 cm. contused swelling over left chest underlying ribs were broken. ;