(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. The instant criminal appeal has been preferred against the judgment and order dated 11.08.1988 passed by II-Additional Sessions Judge, Mathura, in Sessions Trial No.463 of 1987 State Vs. Tano @ Tan Singh and others, arising out of Case Crime No.235 of 1987, under Sections 302, 307, 323 IPC, Police Station Vrindavan, District Mathura whereby accused Mahavir, Brij Nandan and Shanker have been convicted under Sections 302/34 and 323/34 IPC and sentenced to life imprisonment under Section 302/34 IPC and one year rigorous imprisonment under Section 323/34 IPC whereas accused Tano @ Tan Singh has been acquitted of charges giving benefit of doubt. All the sentences have been ordered to run concurrently.

2. Relevant to mention that appellant Shanker died during pendency of the appeal, therefore, his appeal stood abated on 06.10.2015. At present this appeal pertains to the two appellants namely Mahavir and Brij Nandan.

3. The unfolded background facts giving rise to the present appeal as are discernible from the written report (Ext. Ka-10), Chik FIR (Ext. Ka-20) and deposition of fact witnesses during sessions trial are that all three accused are real brothers. The deceased Tej Singh was closely related with them and he used to reside adjacent to the house of the accused persons. The father of the accused persons namely Sukkha and deceased had some joint land. Sukkha, father of the accused is alleged to have mortgaged his portion of joint land to a bank for securing loan and since he could not repay the loan amount, the bank in order to recover the loan amount got the said portion of the land (belonging to Sukkha) auctioned. In the auction, the said land was purchased by one Mahant Keshari Dutt who executed an agreement to sell the said portion of the land to the deceased Tej Singh but after executing the said agreement, Mahant Keshari Dutt died in an accident. However, the wife of Mahant Keshari Dutt instead of selling the said land to the deceased Tej Singh entered into a fresh agreement with the accused after seeking permission of the District Judge.

4. Thereafter the deceased Tej Singh issued a notice to the wife of Mahant Keshari Dutt through his counsel to sell the said land to him. It has also been alleged that in the year 1969, the deceased Tej Singh had purchased a land measuring 1.92 acre from one Sohan Shanker. Sukkha, father of the accused requested the deceased Tej Singh in the year 1969 itself to give the said land to him as he (Tej Singh) had sufficient land in his name. Accordingly, in the year 1969 itself, the deceased Tej Singh executed an agreement to sell the said land to Sukkha, father of the accused-appellants for a sum of Rs.1700/-. As per the terms and conditions of the agreement, Rs.300/- was paid at the time of execution of the agreement whereas Rs.1400/- was required to be paid by Sukkha within two and half years from the date of execution of the agreement. But even after lapse of two and half years, Sukkha did not pay the said balance amount as a result of which the deceased Tej Singh did not execute the sale deed of the said land in favour of Sukkha, father of the accused. Sukkha instead of paying the balance amount, as per terms and conditions of the agreement to sell filed a civil suit, against the deceased Tej Singh which proceeded for some time but later on the civil suit was dismissed in default. Thereafter, Sukkha moved an application for recalling the order dismissing the suit in default. The order dismissing the civil suit in default was recalled and the civil suit was restored to its original number.

5. Because of the above dispute between Sukkha, father of the accused-appellants and the deceased Tej Singh, there was ill-will and enmity between the two families, and due to which the deceased Tej Singh had made a report against Sukkha and some other persons on 06.08.1981 and he had moved also an application to the Superintendent of Police