- (1.) THIS criminal appeal is directed against the judgment and order dated 11-7-1980 passed by 1st Additional Sessions Judge, Lucknow in Session Trial No. 477 of 1978 State v. Dwarka and others, by which the appellants Dwarka, Ram Nath, Ishwar Din and Jhabbu were con victed under Section 302, I. P. C. read with Section 149, I. P. C. and Section 324, I. P. C. read with Section 149, I. P. C. and Section 148, I. P. C. and were sentenced to life im prisonment under Section 302, I. P. C. read with Section 149, I. P. C. and two years rigorous imprisonment under Section 148, I. P. C. and one year's rigorous imprison ment under Section 324, I. P. C. read with/section 149, I. P. C. and the appellants Ram Khilavan, Nattha and Babu and Chhanga wire convicted under Section 302, I. P. C. read with Section 149, I. P. C, Section 147, I. P. C and Section 324, I. P. C. read with Section 149, I. P. C. and were sentenced to life imprisonment under Section 302, I. P. C. read with Section 149, I. P. C. and one year's rigorous imprisonment under Sec tion 147, I. P. C. and one year's rigorous imprisonment under Section 324, I. P. C. read with Section 149, I. P. C. It was also ordered that the sentences of each accused would run concurrently.
(2.) THE case of prosecution as dis closed in the real report Ex. Ka. 1 lodged by Smt. Roop Rani P. W. 1 in the police station Intauja district Lucknow on 17-8-1977 at 9. 30a. m. is as follows:- "smt. Roop Rani, wife of Manohar Lal, is resident of village Kandhaipur hamlet of Kum-harawa and she has a daughter whose name is Raj Kishori and who is aged 8 years and she has a son aged 3 years from her said husband on the night of 16/17-8-1977, she her husband and her children were sleeping in the courtyard of the house' and a lantern was burning in Tarwaha as it used to burn daily and at about mid- night her neighbour Dwarka Ahir had said from Darwaza that "manohar your cow has released herself form the peg and he should tie her. " Upon this Roop Rani got her husband awaken and had told him that Dwarka had said that cow had released herself from the peg and he should tie the cow and that is why her husband opened the main door and then Ram Nath, Ishwar Din, Jhabbu, Ram Khilavan, Sohan Lal, Nattha and Nand Ram of the village and Babu Ahir of the village Manka Khera and Chhanga brother- of-law looser of Sohan Lal of village Kurwa with Banka, Karoli, Lathi an Danda entered in her house and she stood up and her husband ran towards the Kothari and the said persons had started assaulting him. She raised alarm and reached near her husband in order to save him an then all the persons had assaulted her by Karoli and Sohan Lal, Nand Ram and Ram Khilavan had caught hold of her and the said persons killed her husband inside Tarwaha and on her alarm, Jawala and Mathura of the village had reached there and these persons had seen the said persons coming out from the house. Chheda, uncle of Roop Rani had called Nanha who was her Bhanja (nephew) to give his proper ty to him and subsequently he gave his property to her by executing a will. Ram Nath and Jhabhu were helpers of Nanha and previously also these persons had entered in the house and assaulted and in respect of which a case is opening and she has old enmity with the said persons and on account of this enmity, Ram Nath and others had slain her husband. She had left the dead body of her husband in the supervision of her uncle Chheda and had gone to the police station to lodge the report and lodged the report there. " On the basis of the oral report, Ex. Ka-1 a case against the appellants and two acquitted accused was registered at report No. 15 of the G. D. on 17-8-1977 at 9. 30 a. m. under Sections 147,148,302,323 and 452, I. P. C. whose copy is Ex. Ka-2. Gotendra Pal Singh P. W. 5 was posted as Station Officer in police station Intauja district Lucknow in August, 1977. The report of this case was lodged in the police station in his absence on 17-8-1977 at 9. 30 a. m. and information of this report was sent to him in village Ram Purwa through constables Gaya Dutt Pandcy and Maiku Lal along with papers and he at once proceeded for the place of occur rence and he found the dead body of Manohar Lal inside his house. He ap pointed Panchas and prepared Panchayat-nama Ex. Ka-4. He also prepared photo lash Ex. Ka-5, Challan lash Ex. Ka-6, letter Ex. Ka-7 and sample of seal Ex. Ka-8. He scaled the dead body and had sent the dead body along with necessary papers through constable Gaya Dutt Pandey for post-mor tem examination. After that he recorded the statement of Raj Kishori, daughter of the deceased and other witnesses and on the same day he recorded the statement of Smt. Roop Rani when she came back after her medical examination. He inspected the spot and prepared site plan Ex. Ka-9, he had taken the blood-stained clothes of the deceased in his possession and sealed them and prepared a memo in respect of that which is Ex. Ka-10. He had taken the blood-stained earth and ordinary earth in his possession from the place of occur rence and sealed them separately and prepared memo Ex. Ka-11 in respect of that. He found the blood on the door (Kiwar) and got the portion of the kiwar cut on which blood was and sealed it and prepared a meno Ex. Ka-12 in respect of that accused Dwarka, Ram Nath, Ishwar Din, Jhabbu, Ram Khilavan, Sohan Lal, Nattha and Chhanga were arrested an they were brought to the police station and Gotendra Pal Singh (P. W. 5) on 26-8-1977 had arrested the accused Nand Kumar and had interrogated him and on 20-8- 1977 the accused Babu was arrested and was brought to the police station and there he was interrogated by him. He after comple tion of the investigation laid charge-sheet Ex. Ka-13 against the accused.
(3.) THE prosecution in order to prove its case against the appellants and the two acquitted accused examined Smt. Roop Rani as P. W. 1, Raj Kishori as P. W. 2, Ganga Bux Singh as P. W. 3, Dr. Krishna Kumar Singhal as P. W. 4, Gotendra Pal Singh as P. W. 5, Dr. D. Y Singh as P. W. 6, Mohd. Rauf as P. W. 7 out of these witnesses "roop Rani P. W. 1 and Raj Kishori P. W. 2 are the witnesses of fact. THE prosecution had also led documentary evidence. The appellants and two acquitted accused denied the prosecution case and pleaded not guilty. The appellants Dwarka stated that Manohar Lal Din Dayal were real brothers and Din Dayal had illegal connection with the wife of Manohar Lal and now wife of Manohar Lal lives with Din Dayal and he and others had prohibited Din Dayal at Din Dayal and Roop Rani had felt and Manohar Lal was the second husband of Roop Rani. He further stated that Chheda was uncle of Roop Rani and he gave his property to Nanha. Appellants Ram Khilavan, Ram Nath, Ishwar Din, Jhabbu, Nattha, Babu, Chhanga stated that the case had been filed against them on account of enmity and the witnesses had deposed against them on account of enmity. The appellants had led evidence in their defence.;