JUDGMENT

Lokeshwar Singh Panta, J.

1. Both these appeals arising out of the common judgment and order dated 09.12.2005 passed by the Division Bench of the High Court of Judicature at Allahabad in Government Appeal No. 2004 of 1981, were heard together and shall stand disposed of by this common order. By the impugned order, the High Court while setting aside the judgment of acquittal dated June 5, 1981 recorded by the Additional Sessions Judge, Hamirpur, in Sessions Trial No. 293 of 1980, convicted the accused under Section 302 read with Section 149 and Section 148 of the Indian Penal Code and sentenced them to imprisonment for life and two years' rigorous imprisonment respectively.

2. Brief facts of the case are that Subedar Singh (P.W. 1) has got three sons, namely, Jai Karan Singh, Shiv Karan Singh and Ram Karan Singh. P.W. 1 lodged F.I.R. (Ex. Ka.1) on 24.07.1980 at 6:15 a.m. at Police Station, Sumerpur situated at a distance of about 15 kms. from village Patyora, alleging therein that in the year 1976 dacoity was committed at the house of his co-villager Lalloo Singh, who doubted that the offence was committed at the instance of his son Ram Karan Singh and on that account Lalloo Singh had entertained grudge against him and his family members. One Raja bhiah, resident of village Surauli was also involved in the said dacoity case and P.W. 1 appeared as a defence witness for accused Raja bhiah and for that reason also, sons of Lalloo Singh used to threaten him with dire consequences. He alleged that on 23rd July, 1980 his son Jai Karan Singh had gone to the market at Sumerpur and in the evening P.W. 1 went to Yamuna South Bank railway station to receive his son, who was to bring some essential articles from the market. At about 7:30 p.m., the train reached at Yamuna South Bank station. Jai Karan Singh along with Shiv Nath Kewat, Dayalu (P.W. 4) and many other persons got down from the train. He took gunny bag containing 15 seers of `khalli' from Jai Karan Singh who was carrying one more bag containing 3-4 kgs. Of sugar. All of them proceeded towards the village. At about 8:30 p.m., they took a turn from Link Road for the pathway going to the village and Jai Karan Singh was going a few paces ahead of them. Ayodhya Singh son of Lalloo Singh and Indra Pal Singh son of Prithvi Singh armed with DBBL guns and Ranvijay Singh son of Lalloo Singh along with one Jagat Singh son of Rajwa Singh armed with SBBL guns and Ram Bahadur Singh son of Lalloo Singh who was carrying lathi and torch were waiting for the arrival of his son Jai Karan Singh by the side of the pathway. Ayodhya Singh fired gunshot at Jai Karan Singh and immediately thereafter Ranvijay Singh, Jagat Pal Singh and Indra Pal Singh indiscriminately fired rounds at Jai Karan Singh with their respective guns. Jai Karan Singh, on receiving fire arm injuries, fell down near the water channel and ridge of the field of one Brinda Singh towards east side of the path way. The witnesses present at the spot flashed torches at the faces of the accused and recognized them in torch light. The accused, after committing the crime, fled away from the scene of occurrence.

3. P.W. 1 with the help of his co-villagers took the body of deceased Jai Karan Singh to his house at village Patyora. He got FIR scribed from his son Shiv Karan Singh (P.W. 5) at 3:00 a.m. on the following day of the incident and thereafter went to the Police Station, Sumerpur. He handed over the report to the H.M. Rajendra Veer Singh (P.W. 6) who prepared Check Report on the basis of which FIR (Ex. Ka.1) came to be registered. Sub-Inspector Asha Ram Tripathi (P.W. 7) took up investigation of the crime in his hand and rushed to the place where the dead body of Jai Karan Singh was laid. He drew inquest proceedings on the dead body and prepared an Inquest Report (Ex.Ka.5) and other necessary papers (Ex. Ka.6 & Ka. 7) and then handed over the dead body in a sealed cover (Ex.Ka.9) along with other necessary papers to Constables Ra