AWDESH Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal has been filed on behalf of the five appellants. The five appellants, along with Ram Pyare, Ram Kishore and Raj Kumar were convicted by the Additional Sessions Judge, Banda on 13.3.1976 in Sessions Trial No. 55A of 1975 under Sections 302 read with 149, 147 and 323 read with 149 of the Penal Code. They were sentenced to undergo imprisonment for life under Section 302 read with 149, two years R.I. under Section 147 and one year R.I. under Section 323 read with 149. The sentences were directed to run concurrently. Being aggrieved by the judgment of the Trial Court, appeals were filed on their behalf, before the High Court It appears that P. N. Bakshi and P. N. Harkauli, JJ. heard the said appeals. According to Bakshi, J. the charges levelled against all the eight accused persons had been established beyond all reasonable doubt and on that finding he upheld their conviction and sentence. Whereas according to Harkauli, J. the prosecution had failed to prove the charges levelled against them beyond all reasonable doubt and on that finding he set aside the conviction and sentence passed against them by the Trial Court. In view of the difference of opinion between the two learned Judges, the appeal was placed for hearing before B. N. Katju, J. He agreed with the finding of Bakshi, J. but while upholding the conviction and sentence of the five appellants acquitted the other three mentioned above giving them benefit of doubt for the reasons mentioned in the judgment.

(2.) ACCORDING to the prosecution case one Mathura Singh was the maternal grand father of Raghubir Singh (deceased) and Attar Singh (P.W. 1) and Ram Manohar Singh succeeded to the properties of Mathura Singh as his legal heirs. But Ramadhin, Beni, Daduwa and Sarju got their names fictitiously recorded over the lands belonging to Mathura Singh. Appellant Awdesh is the son of Ramadhin. Appellant Kedar is the son of Daduwa. Beni Is the uncle of Kedar. Revenue litigation started thereafter between the parties, which was pending on the date of occurrence. It is the case of the prosecution that inspite of the pendency of the dispute, Atar Singh (P.W. 1) and Raghubir Singh (deceased) continued to cultivate the lands of Mathura Singh. It is said that about two and a half years before the occurrence Raghubir Singh (deceased) was assaulted by the appellant Kedar and others and in respect of that incident a case under Section 324 of the Penal Code was pending. Proceedings had also been initiated under Section 107 and was pending at the time of the occurrence. Raghubir Singh (deceased) was doing pairvi in the aforesaid case.

(3.) IT is an admitted position that the details of the manner of occurrence have been stated in the First Information Report including the names of witnesses like Atar Singh (P.W. 1), Ram Kishun (P.W. 3). These witnesses have supported the prosecution case as disclosed in the First Information Report within one and half hours of the occurrence. There was a strong motive on the part of the accused/appellants to cause the murder of Raghubir Singh, was not disputed during the hearing of the appeal. Admittedly, the lands belonging to Mathura Singh had been inherited by Raghubir Singh and his brothers including Atar Singh (P.W. 1) but the accused person got the lands recorded in their names in respect of which, cases were pending before the Revenue Courts and Criminal Courts, including a proceeding under Section 107 of the Code. Raghubir Singh (deceased) used to do pairvi in those castes. As such all the Courts have proceeded on the assumption that accused persons had strong motive in assaulting the victim and the two eye witnesses of the occurrence.