Raghvendra Kumar, J.

1. Heard Sri K. P. Shukla and Sri A. K. Dwivedi, learned counsel for the appellants and Sri Chandrajeet Yadav, learned Additional Government Advocate for the State of U. P.

2. Under assail in this criminal appeal is the judgment and order dated 7.12.1982 passed by Sessions Judge, Hamirpur in Sessions Trial No.218 of 1981 (State Vs. Drigpal Singh & others) u/s 148, 302/149 IPC, P. S. Kharela, District-Hamirpur whereby accused-appellants have been convicted u/s 148 and 302/149 IPC and sentenced each of them to 2 years R. I. for the offence u/s 148 IPC and imprisonment for life to each of them for the offence u/s 302/149 IPC. Both the sentences were ordered to run concurrently. Being aggrieved by the aforesaid judgment and order, the instant appeal is before this Court.

3. Vide order dated 8.5.2012 the appeal filed on behalf of appellant Gyasi @ Gayadin has been abated due to his death.

4. Briefly stated the prosecution story is as following :

According to the prosecution, Shivnath Singh and Mulayam Singh were real brothers and they were living separately in their own houses. About five year ago, one Dharam Singh was murdered in which Raja Bhaiyya was challaned and subsequently, he was convicted and is languishing in jail undergoing the sentence. The widow of Dharam Singh is grief stricken and is living in her own house. Her devar Drigpal Singh in order to take revenge of the murder of his brother and to satisfy his sister-in-law (bhabhi) was trying to commit the murder. Informant Tej Singh had purchased a cow and visited the place of the deceased Mardan Singh to make the payment of balance amount of the cow along with one Balkishun Bhurji. He was informed that Mardan Singh had gone to enjoy the fair and his younger brother had gone on his routine labour work. The informant Tej Singh stayed at the house of deceased. The mother of deceased and his younger brother and sister came out of the house. Mardan Singh directed the informant to make the payment to his mother.

At about 2 pm he saw that Drigpal Singh equipped with gun, Maiku equipped with farsa and one other accused equipped with farsa and two other accused persons equipped with ballam came in front of the house of deceased Mardan. At that time Mardan was sitting on an earthen wall, he rose from the wall and raised alarm. In the meantime, Drigpal discharged a fire shot at him and on his exhortation other accused persons, started assault. While accused Drigpal Singh discharged the second fire shot, deceased Mardan Singh fell down. Other accused persons assaulted him with farsa and ballam. The family members of deceased raised alarm but none came to their rescue. Accused-appellant Drigpal Singh continously extended threat of life with warning that if anyone would come to rescue then he would have to loose his life.

Accused persons left the place saying that deceased Hari Singh is to be murdered. Hari Singh was working on a 'bandha' as labour. The informant and family members of deceased also followed the accused persons secretly to the place where Hari Singh was working as a labour. At 2.30 pm Hari Singh was surrounded and was murdered by the accused persons. Thereafter the accused persons along with others left the place. Accused Gyasi, Maiku were equipped with farsa and Prahlad and Govind Singh were equipped with ballam and Drigpal Singh was equipped with gun.

5. After registration of FIR, the investigation proceeded in accordance with law.

6. The inquest report of deceased Mardan Singh and Hari Singh was prepared. After documentation the corpuses of deceased were sent for autopsy in a sealed condition. The recovery memo of empty cartridge recovered from the spot and the blood stained soil and ordinary soil and a pair of shoes, lungi was prepared. The items recovered by the I. O. were sent to Government Chemical Analyst, who noted blood stains on the shirt of deceased Hari Singh. The report of Serologist is available on record. After collecting the mater