R.K. Shukla, J.

1. CRIMINAL Appeal No. 3027 of 1985 filed by Shyam Lal and his son Raj Karan appellants and 'CRIMINAL Reference No. 6 of 1985 arises out of the same Judgment and order dated 24-10-85 passed by the learned Additional Sessions Judge Fatehpur whereby he has convicted both the appellants u/Sec. 302/34 IPC for committing murders of Uma Shanker, Smt. Siyakanti and Pappu and sentenced Shyam Lal appellant to death on each of three counts and Raj Karan appellant to imprisonment for life on each count.

2. BOTH the appellants have been further convicted u/Sec. 307/34 IPC for attempting to commit the murder of Km. Suman Lata Misra PW 2 and each of them is sentenced to undergo R. 1. for 10 years. The sentences of Raj Karan appellant were ordered to run concurrently. The aforesaid reference was made by the Additional Sessions Judge, Fatehpur to this court u/Sec. 366 CrPC for confirmation of the death sentence on each counts passed against Shyam Lal, appellant. Both the appellants and three deceased, namely, Uma Shanker, his wife Smt. Siya Kanti, his son Pappu, aged about 3 years and his injured daughter, Km. Suman Lata PW 2 belonged to one Brahmin family of Qasba and P. S. Dhata, District Fatehpur. The details of their relationship is clear from the following pedigree : (Pedigree Omitted-Editor) Complainant Sarju Prasad PW 1 is the brother-in-law :(wife's brother) of Uma Shanker (deceased). He is also a resident of the same Qasba Dhata,

3. BRIEF facts of the prosecution case are that Shyam Lal appellant and his younger brother Uma Shanker (deceased) had their adjoining houses and agricultural land in village Dhata which though they were cultivating separately since long, but their Khata was joint. Shyam Lai appellant, his wife Smt Siya Kanti and his son Raj Karan appellant were residing in Qasba Dhata while Uma Shanker (deceased) was employed as X-ray Technician in Railway at Jhansi. During the time of occurrence Uma Shanker along with his family had come to his village. It is alleged that Shyam Lal appellant had sold his share to one Amber and Chaumba and had mortgaged some of the properties to various persons and as such he had nothing in his possession. Uma Shanker apprehended that his elder brother Shyam Lal may mortgage or sell his shere also, therefore Uma Shanker filed a suit for partition of his share on 16-5-84 at Fatehpur. A copy of the plaint Ex. Ka 39 is on record. Hearing the institution of the said suit for partition by Uma Shanker, Shyam Lal appellant and his family members were very much annoyed and they wanted to teach a lesson to Uma Shanker by finishing his entire family so that there may not be any claimant of his share, which according to inheritance could have devolved on him.

4. ON the night between 16/17 May 1984 Uma Shanker and his family members were sleeping on two cots on a Chabutra in their Sahan. Uma Shanker was to go to JhansI.O.n 17-5-84 to join his duties. His brother-in-law Sarju Prasad complainant who is also resident of the said Qasba Dhata along with one Banwari Lal had gone to the house of Uma Shanker in the evening of 16-5-84 as they also wanted to go to Jhansi along with Uma Shanker and his family. Sarju Prasad and Banwari were sleeping on the roof of the house of Uma Shanker. Uma Shanker was sleeping on one cot and his wife Smt. Siyakanti was sleeping with her two children Pappu and Km. Suman on another cot in their Sahan. At about 12.30 in the night, Sarju Prasad and Banwari Lal awoke on the sounds of shrieks and cry. They saw in the full moon light, appellants Shyam Lal and Raj Karan beating Uma Shanker, his wife Smt. Siakanti and their children with Gandasas while Smt. Soniya wife of Shyam Lal was instigating them to beat so that they may taste the fruit of partition. ON the challenge of Sarju Prasad and Banwari Lal the aforesaid two accused ran away towards north. When Sarju Prasad and Banwari came down they found Uma Shanker, Smt. Siakanti and Pappu injured and dead on the