CHHOTEY LAL Vs. STATE OF U P

JUDGEMENT

(1.) Out of the three appellants, Chhotey Lal and Manik Chand are real brother, being sons of Ram Bharos and are residents of village Tirhara. Police Station Manjhanpur, district Allahabad, and Lakhan son of Saddhu is kewat by caste and belongs to village Alpika Puni, pertaining to the same Thana. All the three have been convicted on a charge under Section 302 read with sec. 34 I.P.C. and sentenced to Imprisonment for life by Mr. K.P. Asthana, the then 1st Additional Sessions Judge, Allahabad, vide his order dated 4.9.1978 passed in Session Trial No. 491 of 1976, feeling aggrieved, they have now come up in appeal.

(2.) The deceased of this case was one Ram Chandra Dwivedi, who was the uncle of the appellants Chhotey Lal and Manik Chand. During consolidation operations, it appears, am agricultural field fell to the share of these three persons. Half of it belonged to the two appellants and the remaining half to Ram Chandra Dwivedi but it appears that Chhotey Lal and Manik Chand were in exclusive possession of the whole and though Ram Chandra was asking them to agree to a partition, they were not prepared. A month prior to this incident there was a quarrel between the deceased and these two appellants regarding the partition of this field. There, was thus bad blood between the deceased and these two persons on account of this land. So far as Lakhan Kewat is concerned, there has been a litigation between the deceased on one hand and Lakhans father on the other regarding an agricultural field, measuring S.S. bighas during the consolidation operations and this case was pending even at the time of this incident it is said that on account of this enmity the three appellants who were already very close inter se combined against the common enemy.

(3.) The occurrence took place at about mid-night on 29/30-6-1976 in the Chhappar outside the main door of the house of the deceased in village Tirahara. About a few minutes before this occurrence there had been a whirl-wind as a result, of which die deceased as well as his two sons Shiv Kumar (P.W. 1) and Awadh Narain (P.W.2) and his wife Smt. Nanki, who were sleeping outside the house in the open and brought their cots under the Chhappar. The deceased lay just infront of the door at a slightly lower level while his Wife and sons lay on the Chabutra on both Sides of this passage. At about midnight Shiv Kumar got up to pass urine and after doing so when he returned back to lie down on the bed he saw the three, appellants come near the Charpoy of his father. Chhotey Lal was armed with an axe (Kulhari), Manik Chand had a pharsa and Lakhan bad a spear, and a torch. He flashed his torch to locate the deceased and gave an alarm on which all the, appellants started to assault the deceased with their respective weapons. Shiv Kumar cried out. This woke up his mother and his brother. His sister Smt. Sumitra who was sleeping inside house also came, out of the house and saw the incident in part. Some of the neighbours were also woken up, and they raised cries from their houses. Within all this time the accused had done their job and after killing Ram Chandra Dwivedi on the spot, nm away before the neighbours could come there. Shiv Kumar was only 14 years of age. He is, the oldest of the sons of the deceased. His younger brother Awadh Narain was only 9 years of a seat, that time. There was no other adult male member in the family and, therefore. Shiv Kumar sent for his brother in law through messenger. By time he came, Shiv Kumar ascribed the first information report Ext. Ka.1 and alongwith his, brother-in-law he went to Police Station, manjhanpur, covering a distance of 10 kilometres. on foot and lodged the report in the Thaila at, 10.30 A.M. on 30.6.1976.