By the Court.—This is an appeal under Section 374(2), Cr.P.C. by Amar Pal Singh, Jai Pal Singh, Harpal Singh, sons of Ganga Ram Singh Jat, and Harbansh Singh son of Thana Singh against judgment and order dated 5.11.1981 passed by the Addl. Sessions Judge II, Moradabad in S.T. No. 593 of 1978, State v. Jai Pal Singh and three others, whereby he has convicted appellant No. 1 Amar Pal Singh under Section 302/34, I.P.C. and 307, I.P.C. and sentenced him to life imprisonment and five years rigorous imprisonment respectively, whereas appellants Jai Pal Singh, Harpal Singh and Harbansh Singh have been convicted under Section 302/34, I.P.C. alone and sentenced to life imprisonment. The case relates to police station Hasanpur district Moradabad and has arisen out of crime No. 149 of 1978.

2. The prosecution case in short is that on 14.7.1978 at about 3 P.M. in village Hafijpur within the circle of police station Hasanpur district Moradabad one Khem Singh, father of Chetan Singh was done to death at Rathkhana (chariot yard) of Ram Kunwar P.W. 2. It was alleged that deceased Khem Singh was named as accused in murder case of Chandra Bhan who was related to the present appellant. He was, however, released on bail in the said murder case. On account of this enmity, the appellants were looking for an opportunity to kill Khem Singh.

3. On the fateful day the deceased was sitting with Ram Kunwar P.W. 2 at the aforesaid Rathkhana and was smoking Hukka when all the four appellants duly armed with guns reached there. On the exhortation of Jai Pal Singh and Amar Pal Singh appellants, all of them opened fire on Khem Singh stating that they were taking revenge for killing Chandra Bhan. Ram Kunwar Singh P.W. 2 tried to plead with them not to do so at least at his Rathkhana. Then appellant Harpal Singh exhorted his companions to eliminate the witness Ram Kunwar also. On this Jai Pal Singh and Amar Pal Singh opened fire on Ram Kunwar from their respective guns and injured him. On account of the injuries Khem Singh died on the spot and Ram Kunwar also fell on the ground. About 8 or 9 fires were made on deceased Khem Singh. First informant Chetan Singh claims that immediately before the incident he was coming to the aforesaid Rathkhana of Ram Kunwar to take Khem Singh back home when all this happened and he witnessed the occurrence and raised alarm and then appellants opened fire on him also but incidentally he did not receive any injury.

4. F.I.R. of this incident was lodged by Chetan Singh on the same day at 18.05 hours at the police station which was about 6 ½ miles away from the place of occurrence. He mentioned that the occurrence was witnessed by Preetam Singh, Dharm Singh, Khacheru Singh, Raj Pal Singh and others.

5. Acting upon this report lodged by Chetan Singh, investigation of the crime was taken up by Sri Raja Ram Nagar, P.W. 8, who was posted as Station Officer of the police station. He immediately proceeded to the place of occurrence along with the assisting police force and sent the injured Ram Kunwar for medical examination and directed Sub Inspector Sri Atar Singh Malik P.W. 4 to hold inquest on the body of deceased Khem Singh on the spot. Search of the accused persons was made but they could not be apprehended. He then recorded the statement of the first informant as well as the statements of the witnesses Raj Pal Singh, Preetam Singh, Dharm Singh and Khacheru Singh. Site plan of the place of occurrence was prepared on the next day, i.e. 15.7.1978. The statement of injured Ram Kunwar under Section 161, Cr.P.C. was, however recorded on 28.7.1978, i.e. 14 days after the incident.

6. Medical examination of Ram Kunwar was held on 15.7.1978 at about 5.30 A.M. Dr. R.K. Sharma P.W. 7 had found the following injuries on his body :

"Multiple rounded wounds about 40 in number over right hypochondrium, right lumber region in front and right iliac fossa. Two rounded wounds in 5th and 6th enter-costal spaces (right side) were also present. F