DWARKA Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order dated 11-7-1980 passed by 1st Additional Sessions Judge, Lucknow in Session Trial No. 477 of 1978 State v. Dwarka and others, by which the appellants Dwarka, Ram Nath, Ishwar Din and Jhabbu were con victed under Section 302, I. P. C. read with Section 149, I. P. C. and Section 324, I. P. C. read with Section 149, I. P. C. and Section 148, I. P. C. and were sentenced to life im prisonment under Section 302, I. P. C. read with Section 149, I. P. C. and two years rigorous imprisonment under Section 148, I. P. C. and one year's rigorous imprison ment under Section 324, I. P. C. read with/section 149, I. P. C. and the appellants Ram Khilavan, Nattha and Babu and Chhanga wire convicted under Section 302, I. P. C. read with Section 149, I. P. C, Section 147, I. P. C and Section 324, I. P. C. read with Section 149, I. P. C. and were sentenced to life imprisonment under Section 302, I. P. C. read with Section 149, I. P. C. and one year's rigorous imprisonment under Sec tion 147, I. P. C. and one year's rigorous imprisonment under Section 324, I. P. C. read with Section 149, I. P. C. It was also ordered that the sentences of each accused would run concurrently.

(2.) THE case of prosecution as dis closed in the real report Ex. Ka. 1 lodged by Smt. Roop Rani P. W. 1 in the police station Intauja district Lucknow on 17-8-1977 at 9. 30a. m. is as follows:- "smt. Roop Rani, wife of Manohar Lal, is resident of village Kandhaipur hamlet of Kum-harawa and she has a daughter whose name is Raj Kishori and who is aged 8 years and she has a son aged 3 years from her said husband on the night of 16/17-8-1977, she her husband and her children were sleeping in the courtyard of the house' and a lantern was burning in Tarwaha as it used to burn daily and at about mid- night her neighbour Dwarka Ahir had said from Darwaza that "manohar your cow has released herself form the peg and he should tie her. " Upon this Roop Rani got her husband awaken and had told him that Dwarka had said that cow had released herself from the peg and he should tie the cow and that is why her husband opened the main door and then Ram Nath, Ishwar Din, Jhabbu, Ram Khilavan, Sohan Lal, Nattha and Nand Ram of the village and Babu Ahir of the village Manka Khera and Chhanga brother- of-law looser of Sohan Lal of village Kurwa with Banka, Karoli, Lathi an Danda entered in her house and she stood up and her husband ran towards the Kothari and the said persons had started assaulting him. She raised alarm and reached near her husband in order to save him an then all the persons had assaulted her by Karoli and Sohan Lal, Nand Ram and Ram Khilavan had caught hold of her and the said persons killed her husband inside Tarwaha and on her alarm, Jawala and Mathura of the village had reached there and these persons had seen the said persons coming out from the house. Chheda, uncle of Roop Rani had called Nanha who was her Bhanja (nephew) to give his proper ty to him and subsequently he gave his property to her by executing a will. Ram Nath and Jhabhu were helpers of Nanha and previously also these persons had entered in the house and assaulted and in respect of which a case is opening and she has old enmity with the said persons and on account of this enmity, Ram Nath and others had slain her husband. She had left the dead body of her husband in the supervision of her uncle Chheda and had gone to the police station to lodge the report and lodged the report there. "

(3.) THE prosecution in order to prove its case against the appellants and the two acquitted accused examined Smt. Roop Rani as P. W. 1, Raj Kishori as P. W. 2, Ganga Bux Singh as P. W. 3, Dr. Krishna Kumar Singhal as P. W. 4, Gotendra Pal Singh as P. W. 5, Dr. D. Y Singh as P. W. 6, Mohd. Rauf as P. W. 7 out of these witnesses "roop Rani P. W. 1 and Raj Kishori P. W. 2 are the witnesses of fact. THE prosecution had also led documentary evidence.