SOMESHWAR AND NAGESHWAR (IN JAIL) Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of September 22, 1980, passed by Vth Additional Sessions Judge, Hardoi. The two Appellants, namely, Someshwar and Nageshwar were convicted by virtue of the said judgment under Section 302 read with Section 34, I.P.C. and sentenced to Life Imprisonment. They were further convicted under Section 201, I.P.C. and sentenced to five -year rigorous imprisonment. Both the sentences were directed to run concurrently.

(2.) THE prosecution story, as stated at the trial, is as follows :

(3.) P .W. 1 Nattha is the chaukidar of village Ikdhara, P.S. Beniganj. He informed the police by verbal communication that Nageshwar 's wife was lying dead inside her house. Here it is relevant to note that this witness did not refer to Someshwar 's wife even during the course of his examination -in -chief. P.W. 2 Lakshmi Narain, according to the prosecution story, had seen the two accused in appeal whispering about their scheme to cause death of Sada Pyari and he also heard them, communicating with each other and soon thereafter he heard the shrieks of Sada Pyari. He, however, left the scene of occurrence, as he was going to attend the call of nature. It is note ­worthy that at the trial, Lakshmi Narain turned hostile and did not support the prosecution case. Similarly P.W. 3 Nand Kishore, P.W. 6 Udai Pratap Singh and P.W. 7 Sarju were declared hostile as they declined to depose in terms of the prosecution story. Nand Kishore was alleged to have seen the two Appellants going towards their Gonda along with the wife of Someshwar on the night of occurrence and on the very next morning he came to learn that Sada Pyari had been killed. Udai Pratap Singh was a witness of Nageshwar 's arrest and recovery of Sooja, material Ext. 1 on his pointing out, but he gave an inconsistent version as regards the place from where the weapon of attack, namely, Sooja was picked up by the accused Nageshwar and handed over to the Investigating Officer. Whereas P.W. 11 Ramashankar Pandey testified that the Sooja was recovered from the outer wall of the Kothari, Udai Prata Singh gave out that the Sooja in question had been kept inside the room, from where Nageshwar brought it out. Following his departure from the prosecution case, Udai Pratap Singh was declared hostile, but even during the course of his cross -examination by the State counsel, he confirmed that Sooja was taken cut from inside the Kothari and not from the wall of the courtyard. P.W. 4 Surajpal Singh is stated to have seen, on the night of occurrence, a human body wrapped in a cloth lying on the chabutara of Someshwar 's Gonda and the two accused standing by its side. On being curious to this situation, Surajpal Singh enquired from the two accused as to what was the matter? To this query, Nageshwar replied that Someshwar 's wife Sada Pyari had suffered a fit. On having become convinced with the averment of Nageshwar, he and his cousin Jagpal left the place with a normal advice of beckoning a doctor. However, the following morning he saw the dead body of Someshwar 's wife lying inside his house. P.W. 5 Bachchan Lal is the father of the deceased. He asserted before the trial Court that Someshwar was in the habit of demanding dowry of cash and kind and when he could not fulfil his unreasonable demand, he with the help of his brother killed Sada Pyari. P.W. 7 Sarju was on regimental duty as a guard in the village during the night of occurrence and along with him, Someshwar was expected to be on chaukidari, but the latter did not turn up.. P.W. 8 Girish Chandra carried the dead body for post -mortem. P.W. 9 Head Constable Sohan Singh had proved the G.D. report Ext. Ka -3 being issued on the oral communication of P.W. 1 Nattha. P.W. 10 Sri Jugul Kishore Awasthi is the first Investigating Officer of the said case. He prepared the inquest report of the deceased and sent it for autopsy. P.W. 11 is the second Investigating Officer, who completed the remaining part of the investigation including interrogation of the important witnesses and he had eventually charge -sheeted the two Appellants. P.W. 12 Dr. A.N. Singh, Superintendent of District Hospital, Hardoi proved the post -mortem report Ext. Ka -19.