( 1 ) APPELLANTS Bhola, Kailash, Deepchand, Rampa)at and Ambika have filed (his appeal against the judgment and order dated 127-1978, pased by the 5th Additional Sessions Judge, Azamgarh, where by he has convicted all the accused-appellants under section 148 Indian Penal Code and sentenced each of them to one year R. I. Kailash appellant is convicted under Section 307 Indian Penal Code and sentenced to five years R. I. and a fine of Rs. 500/ -. In case of default of payment of fine he shall further suffer three months R. I. Rampalat appellant is convicted under section 307 Indian Penal Code and sentenced to undergo four years R. I. Bhola, Deepchand and Ambika appellants are convicted under Section 307 Indian Penal Code and sentenced to three years R. I. each. Both the sentences have been directed to run concurrently.

( 2 ) BRIEFS facts of the prosecution case are that about a month prior to the occurrence in question Kailash appellant was digging Nali for his tube-well through the field of Chandrika Singh, complainant. Chandrika Singh stopped Kailash appellant from digging Nali through his field without paying any compensation or concession in irrigation charges from him. Kailash did not agree to pay any compensation or to make any concession. This caused ill-will between the parties.

( 3 ) THEREAFTER in the night between 17/18th June, 1973 at about 1. 30 A M. the complainant Chandrika Singh was sleeping in front of his house in village Gangapur, police station Kotwali, Azamgarh. His mother, Smt. Rachala and sister Sharda were also sleeping on one cot near by and his brothers son, Virendra (P. W. 2) aged about 5-7 years and sisters son Munim were sleeping on another cot. The mother of the complainant had boil trouble in her leg and, therefore, she was unable to sleep. His sister, Sharda was with her to look after her. A burning lantern was hung by the trunk of the Neem tree nearby. All the aforesaid appellants came there. Bhola, Deepchand and Ambika appellants were armed with Gandasi while Kailash and Rampajat appellants had country made pistols in their hands. It is said that when the complainant received Gandasi blow, he woke up, saw and recognised all the five appellants. All the appellants caused injuries with their respective weapons. On the alarm being raised by him, his mother and his sister, villagers came there but in the mean time all the appellants escaped.

( 4 ) THEREAFTER injured complainant was brought to District Hospital, Azamgarh where his injuries were examined at 1. A. M. by Dr. R. N. Tiwari, who wound seven incised wounds, two linear abrasions and two multiple gun shot injuries on his body, and noted down these injuries in the injury report, Ex. Ka-3. After this Smt. Rachala went to the police station Kotwali and lodged an oral F. I. R. at 3. 15 A. M. case was registered under Sections 148/307 Indian Penal Code and investigation was entrusted to Sri Bhupendra Nath. SI. (P. W. 4 ). After completing the investigation he submitted the charge sheet in court.

( 5 ) AN the appellants pleaded not guilty and denied their participation in this crime. They have produced Banal (D. W. 1) in support or their defence.

( 6 ) PROSECUTION has examined four witnesses in support of its case, out of which Chandrika Singh (P. W. 1) is the injured. Virendra (P. W. 2) is his brothers son, who is a child witness. The statement of Dr. R. N. Tiwari bas been brought on the record as Ex. Ka-4. Abdul Rah (P. W. 4) is the Head Constable, who prepared the chik report. Bhupendra Nath, S. I. (P. W. 4) is the 1. 0.

( 7 ) AFTER discussing the evidence on the record in detail the learned Sessions Judge has doubted the presence of Virendra (P. W. 2) and has convicted all the appellants as aforesaid on the sole testimony of Chandrika Singh (P. W. 1 ).

( 8 ) THE aforesaid prosecution story bas been supported by the evidence of two eyewitnesses, namely, Chandrika Singh (P. W. 1) and Virendra (P. W. 2 ). Virendra is a child witnes