JUDGMENT :

Ashwani Kumar Mishra, J.

1. This jail appeal has been instituted by the accused Somwati (since deceased) and her alleged paramour Kallu, who have been convicted vide judgment and order dated 27.9.2008, passed by Additional Sessions Judge, Court No.1, Kanpur Dehat, in Sessions Trial No.452 of 2007 and sentenced to life imprisonment under Section 302 read with Section 34 IPC, arising out of Case Crime No.223 of 2007, at Police Station Sajeti, District Kanpur Dehat.

2. The prosecution case proceeds on a written information of the Village Chowkidar, who while going to his field on 14.8.2007 at about 8.30 a.m. saw that number of villagers had gathered in front of the house of late Nanku, and when he reached there he found various villagers including Shivnandan son of Baddu, Ravindra son of Virendra Sachan, Vijay Kumar son of Ramaee, Shivram Babu son of Vidhalal, Jagroop son of Parson etc. In the hutment he found the dead body of two sons of late Nanku namely Ramchandra and Veeru. The villagers were asking their mother Somwati and her second husband Kallu as to how the incident occurred. Initially they avoided the question but later confessed that Kallu wanted to purchase a tractor for which he had to take loan by pledging agricultural land. The land, however, was in the name of the two deceased Ramchandra and Veeru, and therefore a conspiracy was hatched between them and tractor agent Jairaj Prajapati son of Ram Gopal about three days back that in the event the two sons of accused Somwati die then their land will come in the name of accused Somwati and the loan would be easily arranged. On 13.8.2007 Jairaj met the accused, who got a dozen Banana at Ghatampur. Jairaj took the Banana aside and mixed some poisonous substance and gave the poisoned Banana to the accused with the instructions that the accused may not eat it and only give it to the two sons so that they die. Jairaj further said that in the evening he will come to verify about the development and that the Banana be given to the boys at about 6.00 O'clock. The two deceased accordingly were given the poisoned Banana who consumed it and fell unconscious. Jairaj is stated to have come and after seeing the boys stated that now their work would be done and later on account of administering poisonous substance the two boys died. In the morning the information spread about death of the two brothers and the dead bodies were found lying in the hutment. Various villagers were present and that the offence has been committed by Somwati, Kallu and tractor agent Jairaj. On the basis of such information Case Crime No.146 of 2007 was registered at Police Station Sajeti, Sub-district Ghatampur, District Kanpur Nagar. The FIR was registered at 10.20 am on 14.8.2007 and the time of occurrence of crime was mentioned as the night intervening 13/14.8.2007. The police proceeded in the matter and recovered peel of Banana, which is marked as Exhibit Ka-18.

3. The inquest followed in which the witnesses observed that the deceased have been done to death by administering poison to them by their step-father and therefore the post-mortem be conducted. The bodies were sealed and sent to mortuary where their post-mortem was conducted at 1.45 pm on 15.8.2007. The autopsy surgeon was of the view that death had occurred about one day prior to the post-mortem and the cause of death could not be ascertained. Viscera was also preserved and later it was revealed that the cause of death was administering of poison (Aluminum Phosphide) for both the deceased. Report of Forensic Science Laboratory has been exhibited as Ka-21 and Ka-22. The investigation proceeded in the matter and ultimately a chargesheet came to be filed against the two accused Somwati and Kallu, which has been exhibited as Ka-20. The magistrate took cognizance on the chargesheet and committed the case to the court of sessions. The court of sessions charged the accused appellant of committing offence under Section 302 read with Section 34 I