JUDGMENT :

SAMEER JAIN, J.

1. The present appeal has been filed by two appellants, namely, Gulab(appellant No. 1) and Nanku @ Nanhu (appellant No. 2). The appeal of Nanku @ Nanhu (appellant No. 2) has been abated, on account of his death, vide order dated 8.12.2021. Therefore, by way of present order, we will decide the appeal filed by Gulab (appellant No. 1).

2. Appellant-Gulab and three others were convicted by the trial court under Section 302 IPC read with section 34 IPC and awarded life imprisonment vide order dated 10.9.1985. The other convicted accused-Ram Awadh and Ram Kripal filed a separate appeal i.e. Criminal Appeal No. 2408 of 1985, has already been abated on account of their death, vide order dated 10.9.2018.

Introductory facts

3. Prosecution case was instituted on a First Information Report (FIR) which was lodged on 4.9.1980, at about 11:15 pm by Nabi Baksh (PW-1) against the appellant-Gulab (surviving appellant) and three others, under Section 302 IPC, at P.S. Handia, District Allahabad as case crime No. 300 of 1980.

4. As per FIR, Nabi Baksh (PW-1) was the Munshi of Shekh Mohammad Naqi (deceased) who was Ex-landlord (Zamindar) having agricultural holdings at Birapur. In respect of illegal occupation of his holdings by Mangal Yadav and his pattidars (associates) Shekh Mohammad Naqi (deceased) had filed a civil suit. Deceased had won a case up to the stage of High Court but another case was pending. As a result, Mangal Yadav and his collaterals used to threaten him. It is alleged that a day before the incident, when the informant (PW-1) had gone to Allahabad in 'pairvi' of a case, Mangal Yadav told PW-1 that it be conveyed to the deceased that he (deceased) will have to face consequences for cases filed against him. It is alleged that on 04.09.1980 due to some household work, informant (PW-1) could not go to Birapur, therefore, he sent his son Nurul Islam (PW-2) to Birapur with the deceased who used to go to Birapur on a daily basis. It is alleged that while the deceased was returning back with PW-2, near village Derha, around sunset, PW-2 stopped for urination whereas Mohd. Naqi (deceased) moved ahead; soon thereafter, PW-2 heard shrieks and saw that accused Ram Awadh, Gulab (surviving appellant), Kripal and Nanhu, who were having enmity with Mohammad Naqi (deceased), forcibly lifted the deceased and took him to the field where there was standing Jwar crop. Due to fear, PW-2 ran away and, at about 8 pm, he gave information to the informant about the incident, and when the informant (PW-1) and others arrived at the spot, they found Shekh Mohammad Naqi lying dead.

5. After lodging the First Information report (Ext. Ka 5), investigation started and police arrived at the spot. Investigating Officer lifted blood stained and plain soil from the spot and prepared recovery memo (Ext. Ka 10) and also recovered one spectacle, an umbrella and a stick (belonging to the deceased) from near the spot and prepared seizure memo (Ext. Ka 14). Thereafter, inquest report (Ext. Ka-4) was prepared and the body was sent for post mortem. On 5.9.1980, at about 3 pm, post mortem was conducted of which post-mortem report (Ex. Ka-16) was prepared and, after investigation, charge sheet was submitted against appellant-Gulab (surviving appellant) and other accused persons under Section 302 IPC. After taking cognizance on the charge-sheet, the case was committed to the court of session and, on 16.7.1981, charges were framed against the appellant no.1 (Gulab) and other accused persons under Section 302 IPC read with Section 34 IPC. The accused including Gulab (surviving appellant) denied the charge and claimed trial.

6. Prosecution during trial examined 13 witnesses, out of them Nabi Baksh (PW-1)-the informant; Nurul Islam (PW-2)-the eye witness; Abdul Wahid (PW-3); and Jadunath (PW-4) are witnesses of fact whereas rest are formal witnesses.

7. After recording the evidence of prosecution witnesses trial court examined appellant-Gulab (surviving appella