(1.) The two appeals have been filed by two brothers Gopal Chand Srivastava and Jagdish Srivastava, sons of Harish Chandra Srivastava against the judgment and order dated 20-06-1991 in Sessions Trial No.256 of 1988 convicting the Appellants under S. 302/34.I.P.C. and sentencing both of them to death thereunder and further convicting and sentencing them under S.201, I.P.C. to three years' R.I. The aforesaid reference has been made by the sentence of death awarded by him to the two Appellants.
(2.) The charge against the two Appellants and co-accused Sabha Shankar who stands acquitted was that on 27-09-1988 at about 10.30 p.m. they along with another miscreant committed five murders concerning Bindbasini Prasad Bageshwari Prasad, Surendra Kumar,Kamlesh Kumar and Sushil Kumar, punishable under S.302/34,I.P.C. and further they concealed the weapons of assault, blood-stained Banka (sharp edged weapon)at the well which was no more in use, punishable under S.201,I.P.C.
(3.) According to the prosecution case, the two Appellants are collaterals of the deceased. Their houses are situate in close proximity with the house of the deceased and that all hail from common ancestor. A long standing dispute persisted between these two branches of the same family regarding mango crop and dis-satisfaction persisted with the accused's side inspite of partition of the property. According to the prosecution case, on 27-09-1988 Smt.Dropdi, PW 1 wife of Bageshwari Prasad (deceased) was sleeping with her grand-son Pinku in the outer Osra (outershed) while her daughters Priti and Sushma were sleeping in the eastern-Osra, and, her nanad Smt.Keola, niece Km.Neelam and nephew Surendra Kumar (deceased) were sleeping in the southern Osra while here daughter-in-law Pushpa and another nephew Kamlesh (deceased) were sleeping in the room siutated on the southern portion of Verandah (Dalan).At that time Bindbasini Lal (deceased) and Sushil Kumar (deceased)were sleeping on the cot and wooden cot (Charpai and Takht) while Bindbasini Lal (deceased) was sleeping in the Osra of the outer room (Baithak) at the sudden hue and cry of Sushil Kumar around 10.30 p.m. Smt. Dropdi, Sushma, Priti, Neelam, Smt.Keola, Pushpa, (PW2), Surendra Kumar, Kamlesh and Bindbasini got up and came out. There was full moon-light and light of the lantern available in which they saw that the two Appellants and two others who could be recognised by face armed with shining Bankas in their hands were saying that on that day they had to liquidate the entire family and no one was to be spared and attacked Bageshwari Lal and Sushil Kumar. When Bindbasini Lal, Surendra and Kamlesh went to save them they attacked those three with those weapons who fell down on the ground and died soon. At the hue and cry raised by remaining members of the family, the accused ran away with the weapons towards north side. Several members of the village had collected. PW 1 Smt. Dropdi Devi dictated a F.I.R. to Km. Priti and being accompanied by Mahendra Kumar,Pradhan, went to the police Station Nevariya and lodged the F.I.R. at 11.50 p.m.