Hon’ble Shashi Kant Gupta, J.—This criminal appeal has been preferred by the appellants No. 1 to 6 namely Vishwanath, Amardeo, Jawahar, Mita, Jiut and Smt. Sukhdei respectively against the judgment and order dated 10.8.1982 passed by IIIrd, Additional, Sessions Judge, Mirzapur in Sessions Trial No. 32 of 1980 pertaining to crime No. 146 of 1977, Police Station Chunar, District Mirzapur whereby accused-appellants Amardeo and Jawahar have been convicted under Section 302/149 of the Indian Penal Code (in short “IPC”) and sentenced to life imprisonment. They have also been convicted under Section 307/149 IPC and sentenced to seven years rigorous imprisonment, under Section 148 IPC one and a half year rigorous imprisonment and under Section 323 read with Section 149 IPC sentenced to six months’ rigorous imprisonment. Accused-appellants Vishwanath, Mita, Jiut and Smt. Sukhdei have been convicted and each sentenced to undergo one year rigorous imprisonment under Sections 147 IPC, life imprisonment under Section 302/149 IPC and six months rigorous imprisonment under Section323/149 IPC. The sentences of each of the accused have been directed to run concurrently.

2. During the pendency of the appeal, appellant No. 1, Vishwanath, Appellant No. 2 Amar Deo and Appellant No. 6 Smt. Sukhdeo are reported to have died and the appeal on their behalf was dismissed abated vide order of this Court dated 22.8.2007. Appeal on behalf of the appellant No. 5 Jiut was also dismissed as abated by order dated 19.5.2015. Thus, the appeal on behalf of Appellants No. 1, 2, 5 and 6 has been dismissed as abated. We are now required to consider this appeal only with regard to the surviving appellants No. 3 and 4, who are alive, namely Jawahar and Mita respectively.

3. The prosecution story, in a nutshell is as follows;

The prosecution case against the accused-appellants is that on 7.7.77 at about 7 a.m. at the house of Lal Kesh in village Baheri, they had formed an unlawful assembly, and in prosecution of the common object of said unlawful assembly murdered Gopnath and caused injuries to Funai and Lalkesh with the intention to commit their murder, and also caused simple injuries to Radhey Shyam and Ram Murat. At the time of the incident the accused Amardeo and appellant No. 3-Jawahar were armed with Gandasa (usually called as Farsha) whereas the accused appellant No. 4-Mita and Jiut were armed with Lathies.

4. It has been alleged that earlier the accused Amardeo too filed a complaint against Ram Murat, Funai, Gopnath, Radhey Shyam, Lal Kesh and 11 others for cutting his crop. The accused mentioned in the complaint were summoned and they obtained bail orders and filed bail bonds on 6.7.1977. It has been further stated that on 7.7.1977 morning a buffalo of the accused Amardeo was found grazing maize crop of Lal Kesh when he objected to this the accused Amardeo uttered the following words;

Þ,sls gh tkuoj iM+sxs D;k djksxs vxj cksyksxs rks tku ls ekj MkysxsaÞ and it lead to heated exchange of words and mutual abuses. Lalkesh went back to his house abusing Amardeo. While this exchange of abuses and heated words were going on between the two, the accused Vishwanath arrived at the spot and instigated Amardeo and uttered “Maro Saale Ko”. By that time Gopnath, Radhey Shyam, Funai and Ram Murat had also reached the house of Lalkesh. The deceased Gopnath dissuaded the accused Amar Deo. However, on being instigated by accused Vishwanath Amar Deo ran towards his house in anger asking for Gandasa and saying that it has now become intolerable to bear the behaviour and now he would kill them. The accused Smt. Sukhdei went inside her house and brought two Gandasa and handed over one to her husband Amardeo and the other to her son appellant No. 3-Jawahar, the accused appellant No. 4-Mita and Jiut (two other sons of Amardeo) also brought Lathis from their house and rushed to the house of Lalkesh. The accused Amardeo gave a blow on the leg of Lalkesh with the Gandasa and