Hon’ble Amar Saran, J.—Heard Sri G.S. Chaturvedi, learned Senior counsel for the appellants and the learned A.G.A. for the State.

This Criminal Appeal arises from the judgement of the Additional Sessions Judge, Court No. 2, (Special Judge, D.A.A.), Banda, dated 27.9.2006.

2. The prosecution case mentioned in the F.I.R., which was lodged at 9.20 p.m. on 9.8.1991, by Constable Surendra Singh, P.W. 4 at P.S. Tendwari was that the informant and Constable Gopal Yadav were doing picketing duty regarding the movement of trucks at a school situate near Semari Nala. At about 8 p.m., two empty trucks came from the direction of Banda. The informant and Constable Gopal Yadav asked the two trucks to proceed after making a convoy for the sake of security, but the two trucks drivers did not heed the prayer, but kept on proceeding, whilst looking in the direction of the police personnel on duty. The deceased Constable Gopal then approached the truck from the western side and flashed his torch and tried to stop the trucks, but the trucks did not heed his request. The truck occupants refused to stop the truck. The driver asked the four persons who were sitting in the rear truck to pull the ‘sala’ inside and to kill him. Then they pulled Constable Gopal inside and the truck rapidly rushed towards Tenduwari. The informant and one other Constable chased the truck. About 2 or 3 furlongs away, they found Constable Gopal’s corpse lying on the road, where he had been thrown after being murdered. His uniform etc. was torn, but his rifle was missing. The miscreants had fled with his rifle, and the cartridges in its magazine. The truck driver and their companions were said to have been recognized in the cabin light and in the torch light flashed by the witnesses, but because there was slush and mud due to rains, the truck number could not be identified. The informant then proceeded to the police station leaving Gopal in a half dead condition alongwith Home Guard Bhagirath, P.W.1.

3. On the informant’s report a case was registered at case crime number 214/91, under Sections 307 and 394 IPC. Mahesh Babu Yadav commenced the investigation of this case. He sent the injured Gopal to Hospital, where he was declared dead. The case was then converted from one under Section 307 to one under Section 302 and 394 IPC. On 10.8.1991, inquest was done on the body of the deceased. The body was forwarded for autopsy to District Hospital, Banda, alongwith the relevant police papers. Post mortem was conducted on 10.8.1991 at 4 p.m., at the District Hospital, Banda, by Dr. M.L. Anandani, PW 2. The following ante mortem injuries were seen :

1. Abrasion 2 cm x 0.5 cm on left chin.

2. Abraded contusion 3 cm x 0.5 cm as dorsal aspect of right hand ulnar side.

3. Abraded contusion 2 x 1.5 cm at dorsal aspect of right elbow.

4. Abraded contusion 1.5 cm x 1cm at dorsal aspect of right elbow, 2cm below injury No. 3.

5. Multiple abrasion in an area of 30 x 6 cm over dorsal and lateral aspect of forearm and arm.

6. Abraded contusion 20 cm x 34 cm over anterior aspect and lateral aspect of left abdomen and upper left thigh, 10 cm away from umbilicus.

7. Abraded contusion 29 cm x 30 cm over right upper thigh and lower part of abdomen over anterior and lateral aspect.?

4. During investigation, truck No. URQ 3660 was said to have been involved in this incident. Its driver was the appellant Ayoob and the accompanying persons were Margoob, Asloob and Fazil. The said persons were made baparda and investigation was done. On the basis of identification, a charge-sheet under Sections 302 and 394 IPC was submitted against the appellants Ayoob and Margoob, Asloob and Fazil. On 2.4.2002 a charge was framed against the appellants and Asloob under Section 394, 302 read with Section 34 IPC. The appellants pleaded not guilty and claimed trial.

5. The prosecution has examined P.W. 1 Home Guard Bhagirath, P.W. 2 Dr. M.L. Anandani, P.W. 3 H.C.P. Har Govind Singh, P.W. 4 Retired Constable Surendra Singh, P.W