BABU LODHI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This Appeal by Special Leave is directed against the judgment of the High Court of Allahabad partly allowing Govt. Appeal No. 3045 of 1972 and setting aside the acquittal of the appellants herein and convicting them under Section 302 read with Section 34, Indian Penal Code under two counts and sentencing them to imprisonment for life under each count for committing the murders of one Ram Nath and his father Bhagwan Das on the afternoon of July 24, 1970 at village Chandwari Police Station, Jaria, District Hamirpur. There was another accused by name Kallu who was also acquitted by the Sessions Judge, Hamirpur but the High Court has affirmed his acquittal under Section 302 read with Section 109, Indian Penal Code.

(2.) The three appellants and Kallu were charged for having committed the murders of Ram Nath and Bhagwan Das by the first appellant attacking them with an axe and the second and third appellants attacking them with spears at the instigation of Kallu to commit the murders. The motive for the attack is said to be that about one year before the occurrence there was a theft of the licenced gun of Bhagwan Das and a complaint therefor had resulted in Kallu being apprehended and charged for committing the theft of fire arm. The first appellant interceded on behalf of Kallu and requested Bhagwan Das and Ram Nath to compound the offence but they pleaded inability on the ground that they had no say in the matter as it was a case taken on file on a Police report. Another cause of provocation proximate in nature was that on the previous day the first appellant was prevented by Bhagwan Das and Ram Nath from taking their buffalo to the cattle pound for being impounded.

(3.) On the day of the occurrence Bhagwan Das and Ram Nath had their mid-day meal and left the house for making coir rope out of hemp. Shortly after they had left the house Ram Nath's wife Smt. Koshi (PW 1) heard the alarm of her husband and rushed out of the house to see what the matter was. She saw Ram Nath being attacked near the house of one Lachchi Ram Mukhia by the three appellants with their respective weapons,. Besides, Smt. Koshi the attack was also witnessed by Anant Ram, brother of deceased Bhagwan Das (PW 3) and Ujoari (not examined). According to Anant Ram, Kallu instigated the appellants to attack Ram Nath but this exhortation is not spoken to by Smt. Koshi and there was also no reference to it in the First Information Report, Exhibit Kha 1 given by her. It was on account of this Kallu was acquitted by the Sessions Judge and the High Court too has declined to interfere with this acquittal. The three appellants repeatedly attacked Ram Nath with their respective weapons and even after he had fallen down they continued their attack for sometime. After their brutal attack the appellants left the place saying they must deal with Bhagwan Das also. After the appellants left the place Smt. Koshi rushed near her husband and found life to be extinct. Feeling apprehensive of the safety of her father-in-law Bhagwan Das, she ran towards the Rahania and found at a place about 80 paces away the three appellants launching an attack on Bhagwan Das also with their respective weapons. Besides Smt. Koshi the attack on Bhagwan Das was witnessed by two other witnesses Jagan Nath (PW 2) and Prabhu (PW 4). These two witnesses who belong to the same caste of Lodhis as the first appellant failed to implicate the first appellant in the attack on Bhagwan Das and hence they have been treated as hostile witnesses and cross-examined. After completing their attack on Bhagwan Das the appellants ran away from the scene carrying their weapons. Bhagwan Das too met with an instantaneous death on account of the numerous injuries inflicted upon him by the appellants.