Bhanwar Singh, J. - (1.) THIS appeal is directed against the judgment and order of September 22, 1980, passed by Vth Additional Sessions Judge, Hardoi. The two Appellants, namely, Someshwar and Nageshwar were convicted by virtue of the said judgment under Section 302 read with Section 34, I.P.C. and sentenced to Life Imprisonment. They were further convicted under Section 201, I.P.C. and sentenced to five -year rigorous imprisonment. Both the sentences were directed to run concurrently.
(2.) THE prosecution story, as stated at the trial, is as follows : Someshwar and Nageshwar are two real bros. being sons of Shri Ram Bajpai and residents of village Sadiyapur, P.S. Beniganj, district Hardoi. The accused Someshwar was married to Sada Pyari, since deceased, in the year 1974. She was the daughter of P.W. 5, Bachchan Lal, resident of village Daulatpur. Right from the very inception of his marriage, Someshwar was very demanding with his father -in -law Bachchan Lal. On his demand, Bachchan Lal paid Rs. 6,000 in cash as dowry and promised to transfer four Bighas of land, of course, on an undertaking by Someshwar that he would maintain harmonious relationship with his daughter Sada Pyari. About five or six months after the marriage, Bachchan Lal had alienated to Someshwar four Bighas of land but ''without any written deed of transfer. However, subsequently Someshwar by deception got a Hibanama (gift -deed) executed in his favour. In the year 1979, the accused Someshwar put up fresh demands of dowry with his father -in -law to comply with. As the prosecution case is, he demanded a wrist -watch, a golden ring and a cash of Rs. 1,500. Bachchan Lal being a poor person failed to meet these demands of his son -in -law, although a little before this juncture, he had supplied a bicycle. It was alleged further that two days prior to the occurrence, Bachchan Lal had gone to the house of Someshwar and then his daughter Sada Pyari conveyed to him that if her husband 's demands of wrist watch, golden ring and cash amount of Rs. 1,500 were not fulfilled, she would be done to death by him. Bachchan Lal assured Sada Pyari to take her away to his house on Someshwar 's father Shri Ram having come back from 'Parikrama '. However, on his return, Shri Ram expressed ' his reluctance to send Sada Pyari, but committed to her being taken away on 4th March, 1979. Unfortunately, the very next morning Bachchan Lal came to learn that Sada Pyari was killed by her husband Someshwar and latter 's brother Nageshwar on the intervening night of 3/4 March, 1979. As per receipt of the information, she was strangulated by her neck and both her eyes were injured by some sharp -edged weapon. When Bachchan Lal arrived in village Sadiyapur, he found Sada Pyari's dead body lying on a cot inside Someshwar 's house. The door of the room in which she was lying dead, was bolted from inside with a chain. On March 4, 1979 at about 7 a.m., the accused Nageshwar informed chaukidar of the village, namely, Nattha P.W. 1 that his wife was lying dead inside his house. However, when Nattha peeped through the space in between the two flaps of the door, he saw Someshwar 's wife lying dead on the cot. Immediately thereafter, he left for the police station and while deputing the Pradhan of the village to guard the room and the dead body, asked Nageshwar to accompany him to lodge the report with the police. Nageshwar refused to oblige. Nattha then alone reached the police station and informed the police at 11.30 a.m. about the murder of Sada Pyari. The police recorded this verbal information in the G.D.A.S.I. Jugul Kishore Awasthi proceeded to the village Sadiyapur and started investigation of the case at 1.30 p.m. On having reached at the site of occurrence, he, with the help of other villagers opened the door by removing one of the two flaps of the door and found inside the dead body of Sada Pyari lying over a cot. She was covered with a quilt. He examined the dead body and prepared the inquest report Ext. Ka -4. Then he drew the sketch of the dead body Ext. Ka -5 and prepared Challan Nash -Ext. Ka -6. The dead body was packed by him in a cloth -cover and sealed and then entrusted to constable Girish Chandra for being carried to Sadar Hospital, Hardoi for post -mortem examination. The Investigating Officer, thereafter, inspected the spot and prepared the site -plan Ext. Ka. 9. His enquiries revealed that it was a case of murder and the two brothers ., namely, Someshwar and Nageshwar had forcibly taken Sada Pyari to their Gonda situated nearby to their house, killed her there by strangulation and by piercing into her eyes some pointed and sharp -edged weapon. From there, her dead body was brought back to the room of their house, where she was found laid on a cot. A trail of blood was noticed between the Gonda and the house of the two accused. The Investigating Officer collected the ordinary and blood -soaked earth from the Gonda and the room of the accused as also from the street which connected the two sites. The two accused were reported to be absconding and all efforts to trace them out went futile. On 5.3.1979 the investigation of this case was transferred to Sri Ramashankar Pandey, S.I. P.W. 11. Sri Pandey examined the witnesses and came to learn that during the night of occurrence when the two convicts were bringing the dead body from their Gonda to the house, they had kept the dead body on a chabutara (platform) and when Surajpal Singh and Jagpal Singh witnesses questioned the two accused standing near a human body, they informed that Sada Pyari had suffered a fit and was, therefore, lying on the ground. The Investigating Officer examined the deceased 's father Bachchan Lal in village Daulatpur. The Investigating Officer succeeded in arresting Nageshwar, after a brief chase, from an agricultural field of 'Arhar ' where he was hiding. Someshwar was also there but he succeeded in making his escape good. On being arrested, Nageshwar confessed the crime having been committed by him and his brother Someshwar and also revealed that he could help in getting the Sooja recovered by which he and his brother had punctured the eyes of the deceased. It was thereafter that at his pointing out, a Sooja, material Ext. 1 was recovered by the Investigating Officer from inside the house of Nageshwar. A recovery memo to this effect was prepared. The other accused Someshwar later surrendered before a Court of Magistrate and when he was in the lock -up, he was examined by the Investigating Officer. On having completed the task of investigation, the I.O. Sri Ramashankar Pandey submitted charge -sheet against the two accused -Appellants before this Court. The prosecution, during the course of trial, examined as many as twelve witnesses in support of its version. A brief resume of the witnesses may be recapitulated as thus.
(3.) P .W. 1 Nattha is the chaukidar of village Ikdhara, P.S. Beniganj. He informed the police by verbal communication that Nageshwar 's wife was lying dead inside her house. Here it is relevant to note that this witness did not refer to Someshwar 's wife even during the course of his examination -in -chief. P.W. 2 Lakshmi Narain, according to the prosecution story, had seen the two accused in appeal whispering about their scheme to cause death of Sada Pyari and he also heard them, communicating with each other and soon thereafter he heard the shrieks of Sada Pyari. He, however, left the scene of occurrence, as he was going to attend the call of nature. It is note ­worthy that at the trial, Lakshmi Narain turned hostile and did not support the prosecution case. Similarly P.W. 3 Nand Kishore, P.W. 6 Udai Pratap Singh and P.W. 7 Sarju were declared hostile as they declined to depose in terms of the prosecution story. Nand Kishore was alleged to have seen the two Appellants going towards their Gonda along with the wife of Someshwar on the night of occurrence and on the very next morning he came to learn that Sada Pyari had been killed. Udai Pratap Singh was a witness of Nageshwar 's arrest and recovery of Sooja, material Ext. 1 on his pointing out, but he gave an inconsistent version as regards the place from where the weapon of attack, namely, Sooja was picked up by the accused Nageshwar and handed over to the Investigating Officer. Whereas P.W. 11 Ramashankar Pandey testified that the Sooja was recovered from the outer wall of the Kothari, Udai Prata Singh gave out that the Sooja in question had been kept inside the room, from where Nageshwar brought it out. Following his departure from the prosecution case, Udai Pratap Singh was declared hostile, but even during the course of his cross -examination by the State counsel, he confirmed that Sooja was taken cut from inside the Kothari and not from the wall of the courtyard. P.W. 4 Surajpal Singh is stated to have seen, on the night of occurrence, a human body wrapped in a cloth lying on the chabutara of Someshwar 's Gonda and the two accused standing by its side. On being curious to this situation, Surajpal Singh enquired from the two accused as to what was the matter? To this query, Nageshwar replied that Someshwar 's wife Sada Pyari had suffered a fit. On having become convinced with the averment of Nageshwar, he and his cousin Jagpal left the place with a normal advice of beckoning a doctor. However, the following morning he saw the dead body of Someshwar 's wife lying inside his house. P.W. 5 Bachchan Lal is the father of the deceased. He asserted before the trial Court that Someshwar was in the habit of demanding dowry of cash and kind and when he could not fulfil his unreasonable demand, he with the help of his brother killed Sada Pyari. P.W. 7 Sarju was on regimental duty as a guard in the village during the night of occurrence and along with him, Someshwar was expected to be on chaukidari, but the latter did not turn up.. P.W. 8 Girish Chandra carried the dead body for post -mortem. P.W. 9 Head Constable Sohan Singh had proved the G.D. report Ext. Ka -3 being issued on the oral communication of P.W. 1 Nattha. P.W. 10 Sri Jugul Kishore Awasthi is the first Investigating Officer of the said case. He prepared the inquest report of the deceased and sent it for autopsy. P.W. 11 is the second Investigating Officer, who completed the remaining part of the investigation including interrogation of the important witnesses and he had eventually charge -sheeted the two Appellants. P.W. 12 Dr. A.N. Singh, Superintendent of District Hospital, Hardoi proved the post -mortem report Ext. Ka -19.;