JUDGMENT

R.C. Lahoti, J.-Ram Naik, Lalta and Kanta, the three accused-respondents who are real brothers were convicted under Section 302/34 IPC and sentenced to imprisonment for life by the Second Additional Sessions Judge, Jaunpur by judgment dated 17.2.1979. A Division Bench of the Allahabad High Court, by its judgment dated 3.5.1991, allowed the appeal preferred by the accused-respondents and acquitted them of the charges. Surendra Pratap Chauhan, son of the deceased, has preferred this appeal by special leave under Article 136 of the Constitution laying challenge to the acquittal recorded by the High Court.

2. The deceased Komal Ram, his father Ram Bharose - who is also an eye-witness to the incident and who lodged the FIR also, Zhamman (P.W.2) and Baijnath (P.W.5) - the two eye-witnesses and the three accused-respondent are all residents of village Saravni Purbi Patti, P.S. Kerakal. There was a civil litigation relating to a land dispute going on since 1966 between Ram Bharose (P.W.1) - the father of the deceased Komal Ram and the accused Ram Naik, wherein Ram Bharose had succeeded in the Trial Court. Ram Naik had preferred an appeal in the year 1976 which was to come up for hearing on 19.5.1978. Komal Ram, the deceased, was looking after the litigation on behalf of his father, Ram Bharose. On 19.5.1978 also Komal Ram was scheduled to leave for the city where the appeal was to be heard. Komal Ram was a primary school teacher by profession. At a distance of about 100 yards from the residential house of Ram Bharose is situated his agricultural land which has also a well. Zhamman (P.W.2) and Baijnath (P.W.5) have their houses situated in close vicinity of Ram Bharose s house in the village.

3. According to the prosecution, sugarcane crop was sown in the agricultural land of Ram Bharose. For two days preceding the date of the incident the crop was being irrigated from the well. For this reason and it being the summer season, Komal Ram used to sleep on a cot by the side of the well while Ram Bharose, Zhamman and Baijnath used to sleep at their respective houses in the village but outside the houses as the villagers do during the summer. At about 3.30 a.m. on the night between 17th & 18th May, Ram Bharose was awakened by Komal Ram s screams. He too raised hue and cry which attracted Zhamman and Baijnath. They started running towards the well. Each one of them had a torch in his hand. They reached near the cot of the deceased Komal Ram. Though it was moon-lit, the trio flashed their torches and saw the three accused persons and an unidentified person standing surrounding Komal Ram. Accused Ram Naik was armed with a gandasa (a butcher s heavy knife, also used for chopping fodder- grass). The other two accused and the unidentified person were empty-handed. The three, expecting Ram Naik, had caught hold of Komal Ram keeping him pressed on the cot in the lying position while Ram Naik was rasping Komal Ram s throat with gandasa, i.e., using the gandasa like a saw or file. The three accused and the fourth person - all took to their heels having seen Ram Bharose and the two witnesses. Komal Ram was found dead having sustained a severe cut wound on the neck and another injury on the left hand. They returned back to the village. One Shriram Yadav helped Ram Bharose by preparing a written report of the incident which was taken to the police station by Ram Bharose and on its basis FIR (Exhibit P-4) was recorded by Sheikh Faikoo, the constable Mohrrir posted at the police station at 6.10. a.m. An offence under Section 302 I.P.C. was registered and the usual investigation commenced, the details whereof are not very material. Autopsy on the dead body was conducted by Dr. R.P. Rastogi. On completion of investigation the three accused - respondents were charge-sheeted.

4. On trial, the learned Sessions Judge found the testimony of Ram Bharose (P.W.1.), Zhamman (P.W.2) and Baijnath (P.W.5) trustworthy and based conviction of the three accu