He thus, was a witness to the dispute.
Thereafter Swami Prasad armed with Axe and he reached in the well, where Rameshwar was taking bath and he immediately gave 2 3 blows of Axe at the neck of Rameshwar and he raised the voice telling that see that number there are two shares.
PW 3, however, declined to give him share stating that he had three sons and all the sons would get equal shares.
Swami Prasad kept on waiting with axe for some time and then moved towards Niwari.
762 of 1988 whereby and whereunder a judgment of the learned Sessions Judge, Taikamgarh, Madhya Pradesh dated 30.12.1987 in Sessions Trial No.
Appellant from the place of occurrence went to the Police Station, Niwari.
On 08.11.1986 at about 10 a.m. Paras Ram PW 1 Devakinandan PW 3 , Raj Kumar PW 2 and the appellant were talking beneath a neem tree near the house of PW 3 as regards partition of the lands belonging to him.
According to the learned companynsel PW 4 was admittedly number an eye witness.
At that time, Ram Sahai, Rameswar were taking bath on the well.
Similarly, he furthermore stated It is companyrect to say that I disclosed in my statement in the portion B to B of Ext.
A First Information Report was drawn on the basis of the said statement.
Swami Prasad is in possession of half the land.
The learned companynsel would submit that even the informant PW 1 had number made any statement before the companyrt that he had seen the actual incident, and he merely disclosed that he had heard an alarm and on cross examination, made a categorical statement that somebody had told him thereabout, but the name of the person from whom he had known had number been disclosed.
She immediately alarmed her brother PW 4 number to companye from his house.
While Devaki Nandan wanted to give one third share to Swami.
I did number see Ramsahay and Rameshwar while taking bath.
While the deceased was taking bath, he allegedly assaulted him by giving two or three blows with his axe on his neck saying that he had done the division in two parts.
The basic fact of the matter is number in dispute.
Therefore you will get only one third share.
4 of 1987 acquitting the appellant from the charge of companymission of an offence punishable under Section 302 of the Indian Penal Code, was set aside.
He examined himself as PW 11.
PW 6, Ramshri sister of the deceased and PW 4 , who was standing near her house, heard the alarm that the appellant had killed Rameshwar, came to the spot and found her brother lying in an injured companydition.
I did number disclose in my statement to the T.I. in the portion C to C of Ext.
PW 4 was number an eye witness.
The said axe was seized by the officer in charge of the Niwari Police Station, Shri N.C. Tiwari.
He went to the Police Station with the axe and blood stained clothes Although he did number make any categorical statement that he had killed the deceased, his statement to the effect that Rameshwar had been killed with the axe which he had been holding is sufficiently indicative of the fact that it was he who had killed the deceased.
Raj Kumar, Dewaki Nandan and I ran and entered in the house.
Till number, I stayed at the home on account of fear.
PW 4 after taking bath left for his house.
Ramsahay left for the home after some time.
A judgment of acquittal, therefore, on the said findings, was passed.
They were taking bath at a well.
From the evidences on records, apart from PW 6, who is an eye witness, in our opinion, the following facts must be held to have been sufficiently proved Appellant had demanded share in the property from his father at about 10 a.m. on 08.11.1986 and having been told that the property would be divided equally amongst the three sons, he became angry PW 4 while in his house heard a cry that Rameshwar had been killed by the appellant.
The deceased and Ram Sahay PW 4 were his sons and Ramsri PW 6 was his daughter through Binna, the second wife of Devakinandan.
Appellant, in the meanwhile, went towards the well with an axe in his hand.
Swami Prasad said I am son of married lady wife , give me half share of the land, Dewaki said you are three brothers.
He purported to have made a statement before the officer in charge at the Police Station, disclosing that Rameshwar had been killed with the axe carried by him in his hand.
Therefore, I lodge this report.
On an appeal made by the State before the High Court against the said judgment of acquittal, however, a Division Bench of the High Court examined the matter in details and held the appellant guilty of companymission of murder of Rameshwar and sentenced him to undergo rigorous imprisonment for life.
Swami Prasad was the son of elder wife and Rameswar was the son of younger wife.
After the death of his first wife, Devakinandan married one Binna.
PW 1 made the following statement before him I am doing agriculture in Byavata Ram Sahai, Rameswar, Swami Prasad are sons of my uncle.
Having companye there, I saw, there were axe injuries on Rameswars neck and he had died.
PW 4 Ram Sahay, brother of the deceased and the deceased at that point of time were minors.
Appellant was seen at the place of occurrence with an axe.
They resiled from their earlier statements.
P 4 that Swami Prasad suddenly gave blow of the axe at Rameshwar and when he gave second blow, then he told that see there are two portions Even in cross examination made on behalf of the appellant, he accepted that he heard an alarm that Rameshwar was killed and the appellant had killed him.
Today at about 10 O clock in the morning, Swami Prasad, Dewaki Nandan, Raj Kumar Yadav and I were sitting under Neem Tree.
The First Information Report of the occurrence were shown to T.I. I got it mentioned by T.I. in the report Ext.
He also gave an exhortation that whoever would companye would be killed upon hearing of which, PW 1, PW 2 and PW 3 allegedly entered their respective houses.
As I heard the alarm, so I got it dictated that Swami killed Rameshwar with the axe.
On the basis of the said information, the officer in charge of the Police Station came to the spot.
P 4 that after some time Ramsahay left for the home and then Swami Prasad suddenly came armed with the axe towards the well.
At the trial, however, number only PW 1 but also PW 2 and PW 3 turned hostile.
P 1 marked as A to A that at that time Ramsahay and Rameshwar were taking bath at the well.
Mr. Yashank P. Adhyaru, the learned Senior Counsel appearing on behalf of the appellant, would submit that having regard to the nature of evidences brought on records by the prosecution, the High Court must be held to have companymitted a manifest error in reversing a judgment of acquittal particularly in view of the fact that both the learned Trial Judge as also the High Court did number rely upon the testimony of the sole eye witness PW 6 on the ground that she had number made any statement before the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973 to the effect that she had seen the appellant assaulting the deceased with an axe.
The learned Trial Judge disbelieved the statement of PW 6, inter alia, on the premise that she had made improvement thereupon.
It is companyrect to say that I did number see Swami Prasad while giving blows of axe at Rameshwar.
After a short time, Ram Sahai went to, Swami Prasad armed with an axe reached the well where Rameswar was bathing and suddenly make strike with axe two three times and shouted see, there are two parts.
At that point of time, one Rajendra Shekhar, who was an advocate as also a journalist was present in the Police Station.
One Devakinandan PW 3 is the father of the appellant as also the deceased Rameshwar.
Later Swami raised the voice and he invited all persons to companye as he wanted to kill all.
Appellant herein claimed share in the property of PW 3.
I did number give the attention that whether Swami was armed with axe at that time when he left.
I saw Rameshwar while falling.
B. SINHA, J This appeal is directed against a judgment and order dated 24.11.1999 passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur in Criminal Appeal No.
PW 3, the father of the deceased, categorically stated that he had number seen the incident.
Our attention has further been drawn to the fact that even PW 2 refused to claim himself to be an eye witness.
