(1.) THESE appeals have been preferred against the judgment and order dated 18/19.10.2004 passed by Additional Sessions Judge/Fast Track Court-1, Ballia, in sessions trial No. 131 of 2003 (State v. Jai Prakash and two others) under section 302 IPC, P.S. Bheempura, District Ballia, whereby appellants Harikesh Yadav and Jai Prakash Yadav have been convicted for an offence punishable under section 302 IPC and 302 read with section 34 respectively and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each and in default further imprisonment for one year. Accused Smt. Phuljharia wife of Ram Chandra has been acquitted of the charge framed against her.
(2.) BOTH appeals are being decided together through this common judgment.
(3.) THE prosecution case as disclosed in FIR is that on 12.1.2003, Yogendra Yadav, real brother of informant Keshav Yadav, left his house with Harikesh Yadav and Jai Prakash Yadav at about 4 P.M. for taking liquor but he did not come back in the night, at which informal Keshav Yadav along-with some persons tried to trace out Yogendra through out night as well as in the morning of 13.1.2003, but to no avail. Thereafter Harihar Yadav and Bhim Yadav disclosed before the informant etc. that Yogendra was seen in the company of Hairikesh, Jai Prakash and Phuljharia w/o Ram Chandra Harijan of Govindpur on 12.1.2003 on the way leading to Lohta near the tube-well of Chandra Deo Yadav and they were having some pouches of liquor with them at that time. The informant party then went to the house of Ram Chandra in village Govindpur on 13.1.2003 but Phuljharia was found absent. Informant Keshav Yadav along with some persons tracing out Yogendra reached Govindpur Railway Station in the morning of 14.1.2003 and found Harikesh, Jai Prakash and Smt. Phuljharia present there. The informant etc. then enquired from them about Yogendra, who had left his house with them on 12.1.2003, at which Harikesh and Jai Prakash disclosed that they had killed Yogendra, in the meantime the passenger train arrived at the platform at which Harikesh and Jai Prakash boarded the same, but Phuljharia could not board. The informant and his companions then overpowered Phuljharia and on being interrogated she disclosed that she along with Harikesh, Jai Prakash and Yogendra had gone to brick kiln of Ram Jag Singh, all of them set fire and consumed liquor there and thereafter Harikesh and Jai Prakash overpowered Yogendra, and Harikesh committed his murder by cutting his neck with 'Dav' (sharp edged weapon) and left his dead body on the spot. The informant party then took Phuljharia to the alleged spot and at her pointing out found the dead body of Yogendra nearby the said brick kiln. Accused Phuljharia was having illicit relations with accused Harikesh.