ADYA PRASAD MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) These two appeals challenge the judgment and order dated 24-2-1982 passed by Sri R.P. Mishra, the then II AddI. Sessions Judge, Basti in Sessions Trial No. 197 of 1980. They, being connected with each other, are being decided by a common judgment. The appellants in Criminal Appeal No. 528 of 1982 are Adya Prasad Mishra and Harish Chandra Mishra. The appellant in Criminal Appeal No. 529 of 1982 is Thakur Prasad Mishra son of Sheo Murat. All of them have been convicted under Section 302 read with Section 34 I.P.C. and Section 323 read with Section 34 I.P.C. The sentence of life imprisonment has been passed against them for the former offence and six months rigorous imprisonment for the latter. Both the sentences have been ordered to run concurrently. The deceased of the incident was Kamta Prasad whereas Indu Shekhar PW 2 and Chandra Shekhar PW 3 were the injured of the incident which occur-red on 27-12-1978 at about 9 A.M. in village Tilakpur, P.S. Kaptanganj, District Basti situate at a distance of four miles from the concerned police station. The report was lodged at 11.30 P.M. on 27-12-1978 by the injured Indu Shekhar PW 2. Both the injured are the sons of the deceased Kamta Prasad.

(2.) The prosecution case as unfol-ded at the trial was that Sheo Murat and Algoo were real brothers. Sheo Murat had three sons Thakur Prasad, Adya Prasad and Ram Lakhan. Bhagwan Dei was the widow of Algoo who died issueless. Harish Chandra accused is the son of Adya Prasad accused. The accused are colla-terals of the deceased Kamta Prasad. Adya Prasad Mishra had got the property of Algoo transferred in his name by Bhagwan Dei, widow of Algoo in which Ram Lakhan was given no share. For this reason, Ram Lakhan was ill-disposed to Adya Prasad. There was some agricul-tural land in village Raja Jot in the name of Ram Lakhan. It was inter-se divided amongst the accused and Ram Lakhan. When Adya Prasad got the property of Algoo transferred in his exclusive name Ram Lakhan also took forcible possession of the entire property recorded in his name in village Raja Jot. The deceased Kamta Prasad had helped Ram Lakhan in taking forceful possession of the same. Therefore, the accused were nursing grudge against the deceased and his sons. In May/June 1978, Ram Lakhan performed the marriage of his daughter. He convened a Panchayat and the decea-sed also attended it. In the said Panchayat the deceased advocated the cause of Ram Lakhan and demanded some place from Adya Prasad for celebrating the marriage of the daughter of Ram Lakhan, but Adya Prasad did not relent at all. Ram Lakhan, therefore, celebrated the marriage of his daughter from the house of the deceased Kamta Prasad. It was disliked by the accused Thakur Prasad and Adya Prasad.

(3.) The house of the accused was adjacent the western side to that of the deceased Kamta Prasad. The two houses were connected by a common wall. A few years before the incident, Thakur Prasad, Adya Prasad and Ram Lakhan had divided their houses. The southern portion of the house was given to Ram Lakhan. It con-sisted of one Kothari and some open land. The northern portion of the house belon-ged to Thakur Prasad and Adya Prasad. The back side of the house of the deceased was to the southern side. A Neem tree and guava trees existed in the said back side land of the house of the deceased. The Neem tree was planted by the deceased which exclusively belonged to him. To the east of the said Neem tree, thatch and trough of the deceased existed.