VISHNU SAHAI, J.

( 1 ) THROUGH this appeal, the six appellants namely, Ram Asrey, Khelawan, Bhagwati, Ram Harakh, Raja Ram and Kallu have challenged the judgment and order dated 21-7-1980 passed by the Sessions Judge, Rae Bareli in Sessions Trial No. 4 of 1980 whereby they have been convicted and sentenced in the manner stated hereinafter :-1. Ram Harakah : (i) under S. 148, I. P. C. to two years R. I. ; and (ii) under S. 302, I. P. C. to imprisonment for life. 2. Kallu : (i) under S. 148, I. P. C. to two years R. I. ; and (ii) under S. 326, I. P. C. read with 149, I. P. C. to three years R. I. 3. Ram Asrey, Khelawan, Bhagwati and Raja Ram : (i) under S. 147, I. P. C. to one years R. I. ; and (ii) under S. 326, I. P. C. read with 149, I. P. C. to three years R. I. The substantive sentences of the six appellants have been ordered to run concurrently.

( 2 ) THE informant Sardar, his sons Babu Lal, P. W. 3 and Sunder (not examined), deceased Rameshwar and wife of the deceased Smt. Sukha, P. W. 4 and the six appellants at the time of the incident were living in Kanpuriyan, hamlet of Lodhwari within the limits of P. S. Deeh in district Rae Bareli. The deceased Rameshwar was nephew (sisters son) of appellant Bhagwati, father of appellants Ram Harakh and Raja Ram. The first marriage of Rameshwars mother Umrai was performed with Ghirrau and Rameshwar was born from the wedlock. About 15-16 years prior to the incident Ghirrau died. On his death Bhagautis father gave 1/4th portion of his land to Umari who continued living with her son Rameshwar. Thereafter Umrai married for a second time and went to Jagatpur, but Rameshwar continued living in the village and cultivating 1/4th land given to his mother. During consolidation, he got the said land entered in his name. Ram Asrey alias Asrey wanted to sell some of his land to Onkar Murai and took on credit some money from Rameshwar. On 14-9-1978 at about 6-7 p. m. appellant Raja Ram son of Bhagwati was playing Jhavar with some boys. Rameshwar told them to go away and reprimanded him for making noise. Raja Ram went and told this to his father Bhagwati. At about 7. 30 p. m.-9 p. m. Bhagwati instigated that Rameshwar be killed. He was accompanied by Raja Ram, Ram Asrey, Ram Harakh, Kallu and Khelawan. Out of them, Ram Harakh and Kallu were armed with axe and the remaining with lathis. Bhagwati and others surrounded Rameshwar. Thereafter Ram Harakh inflicted an axe blow on Rameshwars person which resulted in his intestines protruding out. At that juncture, the informant (Sardar), his sons Sunder and Babu alias Babu Lal reached there and questioned them for assaulting Rameshwar. Thereupon Kallu with axe and Bhagwati with lathi assaulted the informant. They also assaulted Sunder and Ram Asrey. Raja Ram, who had iron ring in his lathi, assaulted Babu with lathi. After assaulting Rameshwar, Sunder, Babu and Sardar, the appellants ran away. Apart from Sardar, Babu and Sunder, this incident was also seen by Smt. Sukhha, P. W. 4 wife of Rameshwar. Since the incident had taken place during night time, the informant did not proceed to the police station to lodge the F. I. R. Next morning after sunrise, he went and lodged his F. I. R.

( 3 ) THE evidence of Head-moharrir Kundan Singh, P. W. 6 shows that the F. I. R. of the incident was lodged on 15-9-1978 at 9. 15 a. m. at P. S. Deeh by Sardar and on its basis he registered a case in the general diary vide Exhibit Ka-14. His evidence shows that he thereafter sent the victims for medical examination.

( 4 ) THE injuries of Sunder Lal, Babu Lal and Sardar were examined on 15-9-1978 at 10. 10 a. m. 10. 40 a. m. and 11 a. m. respectively by Dr. S. K. Tarkayastha-PW 5. On the person of Sunder Lal the doctor found 1 incised wound, 4 contusions, and 3 lacerated wounds. On the person of Babu Lal, the doctor found 2 lacerated wounds and two abrasions. On the person of Sardar the doctor found 1 lacerated wound, 2 incised wounds, and 2 abrasions. In the opinion of Dr. T