JUDGMENT

H.K. SEMA, J.- THE ACCUSED SHRI KRISHNA, LAKHAN LAL, RAM SHANKER AND KAILASH NATH WERE PUT TO TRIAL BEFORE THE IVTH ADDITIONAL DISTRICT AND SESSIONS JUDGE, KANPUR, FOR THE MURDER OF THE DECEASED RADHEY SHYAM. THE TRIAL COURT CONVICTED THE ACCUSED SHRI KRISHNA UNDER SECTION 302 IPC AND LAKHAN LAL, RAM SHANKER AND KAILASH NATH WERE CONVICTED UNDER SECTION 302 WITH THE AID OF SECTION 34 IPC AND WERE SENTENCED TO RIGOROUS IMPRISONMENT FOR LIFE. AGGRIEVED THEREBY TWO APPEALS WERE PREFERRED BEFORE THE HIGH COURT. CRIMINAL APPEAL NO. 1123 OF 1980 WAS PREFERRED BY LAKHAN LAL AND OTHERS. CRIMINAL APPEAL NO. 1126 OF 1980 WAS PREFERRED BY THE ACCUSED SHRI KRISHNA. BOTH THE APPEALS WERE HEARD TOGETHER BY THE HIGH COURT OF ALLAHABAD AND BY THE IMPUGNED JUDGMENT AND ORDER THE APPEALS A WERE ALLOWED AND THE ACCUSED WERE ACQUITTED OF ALL THE CHARGES AGAINST THEM; HENCE THESE APPEALS BY SPECIAL LEAVE. BRIEFLY STATED, THE FACTS ARE AS FOLLOWS:

THE COMPLAINANT PARTY AND THE ACCUSED ARE INTERRELATED. KALICHARAN HAD FIVE SONS (1) SATYA NARAIN, (2) RAM GOPAL @ MOORA, (3) CHHANU LAL (THE INFORMANT), (4) MUNNULAL, AND (5) SHRI KRISHNA (ACCUSED 4). THE DECEASED RADHEY SHYAM WAS THE SON OF CHHANU LAL. A-I LAKHAN LAL, A-2 RAM SHANKER ARE SONS OF MUNNULAL. A-3 KAILASH NATH IS THE SON OF A-4 SHRI KRISHNA. THE MOTIVE OF THE MURDER APPEARS TO BE THAT THE FIELD BELONGING TO KALICHARAN WAS CULTIVATED BY THE ACCUSED AND NO SHARE WAS GIVEN TO CHHANU LAL AND HIS SON RADHEY SHYAM (THE DECEASED). THE DECEASED RADHEY SHYAM APPEARS TO HAVE FORCIBLY CULTIVATED THE PORTION OF LAND WHICH CULMINATED IN HIS MURDER.

2. THE PROSECUTION STORY IN BRIEF IS THAT ON 22-7-1979 AT ABOUT 2 P.M. PW 1 CHHANU LAL (THE INFORMANT) STATED THAT ON THE FATEFUL DAY BOTH HE AND HIS DECEASED SON WERE PRESENT AT THE PLOT WHEN HE WAS TAKING GRASS OUT OF HIS PADDY PLOT IN WHICH THE PLANTS FOR TRANSPLANTATION HAD BEEN GROWN. HIS SON RADHEY SHYAM AT THAT TIME WAS SLEEPING UNDER THE CHHEKUR TREE AFTER TAKING HIS MEAL. AT ABOUT 2 P.M. FOUR ACCUSED CAME THERE. ACCUSED LAKHAN LAL, RAM SHANKER AND KAILASH NATH PRESSED RADHEY SHYAM ON THE GROUND AND ACCUSED SHRI KRISHNA CUT THE NECK OF RADHEY SHYAM BY A GANDASA. RADHEY SHYAM SHRIEKED BY WHICH THE COMPLAINANT WAS ATTRACTED AND SAW THE OCCURRENCE. THE COMPLAINANT RAISED AN ALARM WHICH ATTRACTED PW 3 DESH RAJ AND PW 5 SMT JAI SHRI DEVI, WIFE OF THE DECEASED, WHO CAME WITH WATER. AFTER SEEING THE ARRIVAL OF THE WITNESSES THE ACCUSED FLED AWAY. AFTER THE ACCUSED LEFT THE PLACE THE INFORMANT AND OTHERS WENT NEAR RADHEY SHYAM AND HE WAS FOUND DEAD WITH HIS NECK CUT. A WRITTEN REPORT WAS LODGED AT POLICE STATION SHEROAJPUR ON 22-7-1979 ITSELF AT 6.30 P.M. THE PLACE OF OCCURRENCE WAS AT A DISTANCE OF SIX MILES FROM THE POLICE STATION.

3. THE PROSECUTION EXAMINED THREE EYEWITNESSES, PW 1 CHHANU LAL (THE INFORMANT), PW 3 DESH RAJ IS AN INDEPENDENT WITNESS AND PW 5 SMT JAI SHRI DEVI, WHO WAS DECLARED HOSTILE. THE TRIAL COURT AFTER CONSIDERING THE EYEWITNESSES AND DOCUMENTS ON RECORD CAME TO THE CONCLUSION THAT THE PROSECUTION HAD ESTABLISHED ITS CASE BEYOND ALL REASONABLE DOUBTS AND RECORDED THE CONVICTION AS AFORESTATED.

4. LEARNED COUNSEL FOR THE APPELLANT CONTENDED THAT THE TRIAL COURT FINDINGS DO NOT SUFFER FROM ANY INFIRMITY AND THE HIGH COURT SHOULD NOT HAVE INTERFERED WITH THE FINDINGS RECORDED BY THE TRIAL COURT. ACCORDING TO HIM, THE HIGH COURTS REVERSAL OF CONVICTION IS SOLELY BASED ON PERVERSE FINDING.

5. PER CONTRA LEARNED COUNSEL FOR THE RESPONDENTS SUPPORTED THE ACQUITTAL RECORDED BY THE HIGH COURT, AS ACCORDING TO HIM, THERE WERE DISCREPANCIES AND CONTRADICTIONS IN THE EVIDENCE OF EYEWITNESSES AND THE ACCUSED WERE H ENTITLED TO ACQUITTAL. HE FURTHER CONTENDED THAT PW 5 WIFE OF THE DECEASED HAS TURNED HOSTILE AND NO RELIANCE CAN BE PLACED ON HER TESTIMONY. ACCORDING TO HIM, THE HIGH COURT WAS JUSTIFIED IN RECORDING ACQUITTAL AND THE SAME SHOULD NOT. BE DISTURBED. WE WILL STRAIGHTAWAY DEAL WITH THE FINDINGS OF THE HIGH COURT, WHICH IN OUR OPINION,