U. S. TRIPATHI, J.

( 1 ) THIS appeal has been directed against the Judgment and order dated 27-4-1981 passed by IV Addl. Sessions Judge, Deoria in Sessions Trial no. 243 of 1979, convicting appellants mukteshwar (19) and Adya Pandey (20) under Section 302 read with Section 34 IPC and sentencing each of them to undergo imprisonment for life.

( 2 ) THE prosecution story, briefly stated, was as under : gautam Pandey (19) deceased was nephew of Chandra Shekhar Pandey (P. W. 1) and brother of Purusottam Pandey (P. W. 3 ). The appellants and deceased were residents of village Rupai, P. S. Khukhundu, district Deoria. A year before the occurrence of this case Mukteshwar appellant had stolen cycle of Mahadeo Bania of village vaikunthpur. When Mahadeo demanded his cycle from Mukteshwar appellant he asked to pay Rs. 40/- to which Mahadeo agreed. The payment of above Rs. 40/- was made through Chandra Shekhar (P. W. 1 ). Subsequently, mukteshwar appellant did not hand over cycle to Mahadeo, nor he refunded the money. When Gautam deceased came to know about it he took Rs. 40/- from mukteshwar appellant and when mukteshwar demanded back his money he said that he had paid money to his uncle chandra Shekhar. This had annoyed mukteshwar appellant.

( 3 ) ON the night of 20/21-3-79 at about 8. 00 p. m. Chandra Shekhar (P. W. 1)purushottam (P. W. 3) and Gautam deceased were sitting in their verandah. Appellants mukteshwar and Adya who were pattidars came there and called Gautam deceased. They took Gautam deceased with them. At about 9. 45 p. m. when Chandra Shekhar (P. W. 1) and Purusottam (P. W. 3) were going to sleep, the mother of Gautam deceased told them that Gautam deceased had not returned, nor he had taken his meals. On it chandra Shekhar (P. W. 1) and Purusottam (P. W. 3) taking torches and dandas came to the house of appellant Adya, but he was not present at his house. Thereafter they went to the house of appellant Mukteshwar, who was also not present at his house. Gautam was also not found at the house of appellants. Chandra Shekhar (P. W. 1) and purusottam (P. W. 3) started searching gautam deceased. When they came to the house of Satya Dev (not examined) he told that he had seen Adya, Mukteshwar and gautam going towards south. Chandra shekhar (P. W. 1) and Purusottam (P. W. 3)searching the deceased went towards southern siwan (fields) along with Satya Dev. When they reached near the well of Jagnnath pandey at about 11. 00 p. m. Ram Badai (P. W. 4) came there and told them that the appellant Mukteshwar, Adya and one unknown person were causing knife injuries on Gautam deceased. Chandra Shekhar (P. W. 1), Purusottam (P. W. 3), Satya Dev and ram Badai (P. W. 4) rushed towards south and when they reached near maize and wheat fields of Ram Badai (P. W. 4) they saw the appellants Adya and Mukteshwar along with one unknown person running towards east and when they flashed their torches on them they saw that appellants and unknown person were having open knives in their hands. They chased them but they could not be apprehended. They returned to the field of Ram Badai (P. W. 4) and saw that Gautam was lying dead In the said field and there were knife injuries on his person. Chandra shekhar (P. W. 1), Purusottam (P. W. 3) and other persons who came to the spot subsequently remained on the spot and could not come to the police station in the night due to fear. On the next morning Chandra shekhar (P. W. 1) got prepared his report Ext. Ka-1 from Jai Prakash Pandey and came to the police station Khukhundu, where he lodged report at 11. 15 a. m. Chick FIR Ext. Ka-4 was prepared by Head Constable Bal govind Tiwari who made endorsement of the same at G. D. report Ext. Ka-5 and registered a case against the appellants and one unknown person under Sections 302 and 201 ipc.

( 4 ) INVESTIGATION of the case was taken up by Sri Paras Nath I. O. (P. W. 6 ). He interrogated Chandra Shekhar (P. W. 1) at the police station and thereafter rushed to the spot. He

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