Judgment

UNTWALIA, J.:- There are five appellants in this appeal by special leave. Appellants Girja Singh and Hari Har Singh have been convicted under Section 302/149 of the Indian Penal Code and each of them has been sentenced to death. A sentence of three years rigorous imprisonment has also been awarded to each of them under Section 148. Appellants Ram Adhar Singh Hardwar Dubey and Ram Sudhar Dubey have been convicted under Section 302/149 and Section 147 of the Penal Code. Each has been awarded life imprisonment under the former count and a concurrent sentence of two years rigorous imprisonment under the latter.

2. In the occurrence which took place at Chochakpur Bazar, Police Station Karanda, District Ghazipur the person killed was Amaldhari Singh resident of Lachmanpur, hamlet of Village Chochakpur Bazar. The occurrence took place on the 20th January, 1972 at about 5.00 on the road running east to west through the Bazar. Appellants Hari Har Singh Girja Singh and Ram Adhar Singh are brothers all sons of Bibhuti Singh. The other two appellants inter se are also brothels and they are sons of Amar Deo Dubey. It would appear from the evidence of Kawaldhari Singh, P.W. 1 brother of deceased Amaldhari Singh that there has been a lot of litigation between the family of the deceased and that of Bibhuti Singh. The Dubeys have been in the camp of the latter. The immediate cause of the occurrence is said to be the incident which occurred at about noon on the 20th January, 1972. One Sudama had moved an application under Section 92 of the Code of Civil procedure against one Mahant Shanta Nand Giri. Appellant Girja Singh was doing the Pairvi on behalf of Sudama while Amaldhari Singh was doing Pairvi for the Mahant. At about noon time on the date of the occurrence, the Sub-Divisional Officer Shri Ram Yag Singh had gone to the Math which is not far from Chochakpur Bazar to make some local investigation in respect of the enquiry which was preceding on the application filed by Sudma. Appellant Girja Singh and Amaldhari Singh were present to do pairvi on behalf of their respective parties. After the Sub-Divisional Officer had left the Math there was a quarrel between them. Girja Singh held out threat to kill Amaldhari.

3. In the afternoon Amaldhari Singh along with his brother Kawaldhari Singh; P.W. 1 came to Chochakpur Bazar from their house in Lachmanpur to purchase some cloth. They went to the shop of Kamta Rai. P.W. 4 a little before 5.00 p.m. They could not select any cloth for purchase. At about 5. oo p.m. both the brothers came out of the shop of Kamta Rai and proceeded towards West. Kawaldhari singh was proceeding about 50 or 60 paces ahead of Amaldhari. Suddenly the five appellants emerged from another shop and attacked Amaldhari. Appellants Girja Singh and Hari Har Singh were armed with pistols and the other three were armed with lathis. Amaldhari raised an alarm and ran towards West. The three appellants inflicted lathi blows from behind. Each of the two appellants who were armed with a pistol fired shots at him. On receiving shots Amaldhari fell on the ground and thereafter again appellant Ram Adhar Singh inflicted a lathi blow on him. After committing the assault the appellants ran away.

4. Amaldhari was put on a cot in no time and taken to Nandganj wherefrom he was taken to Ghazipur hospital in a taxi which was coming from Varanasi side. Dr. Om Prakash, P. W, 16 soon examined him and declared him dead. Dr. A. K. Verma. P.W. 9 was in-charge of the Emergency duty and he sent a memo to Police Station Kotwali Ghazipur. Kawaldhari dictated a report to Dhananjai Singh, son of the victim and the latter took the report to the Police Station. On the basis of this report a case was instituted. Since the incident took place in Chochakpur Bazar which lay within the jurisdiction of Karanda Police station, a copy of the Chik Report was sent there through Sub-Inspector Kalika Singh of Kotwali Police Station. The autopsy on the dead bady at Amal