Hon’ble Arvind Kumar Mishra-I, J.—Aforesaid two appeals arise out of common judgment passed in the Sessions Trial No. 184 of 2003, State v. Surendra Nath Singh and others, therefore, both these appeals are being heard together and decided by this common order.

2. Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Shashi Bhushan Kunwar, learned counsel for the appellants, Sri A.N. Mulla, Sri Sageer Ahmad and Smt. Manju Thakur, learned AGAs for the State and perused the record of this appeal.

3. By way of aforesaid two appeals the appellants have challenged judgment and order of conviction dated 31.5.2008 passed by the Special Judge/Additional Sessions Judge, Ballia in Sessions Trial No. 184 of 2003, under Sections 147, 302, 201 IPC, Police Station Kotwali Shahar, District Ballia arising out of Case Crime No. 385 of 2001, whereby, the appellants, have been sentenced to one year imprisonment, each, under Section 147 IPC’; sentenced to imprisonment for life, coupled with fine Rs. 5000/with default stipulation for additional one year imprisonment under Section 302/149 IPC; 5 years imprisonment coupled with fine Rs. 1000/with default stipulation for two months additional imprisonment under Section 201 IPC.

4. Facts of the prosecution story as discernible from record appear to be that informant Achchhey Lal Giri son of Ram Sakal Giri resident of Gore Pokhar, Police Station Maniyer, District Ballia moved a written report addressed to Superintendent of Police, Ballia on 21.5.2001 alleging therein that his brother Suresh Giri is engaged in the work of contractorship, in the irrigation department. His brother Suresh Giri proceeded for Ballia on 14.5.2001 at about 8.00 a.m. from his village intimating the informant that he had some work in the Irrigation Department and he will also obtain his money from Babu Surendra Nath Singh son of Kashi Nath Singh of the Irrigation Department to whom he had earlier given some money. He also told that he would return till evening the same day, but he did not return till today i.e. upto 21.5.2001 which embarrassed the informant and his other family members. Condition of informant’s brother is not normal because he has not informed about his condition (whereabout) to the family members. Therefore, information is being given for taking appropriate action. This written report is Exhibit Ka-2.

5. Contents of aforesaid report were taken down in the concerned General Diary of date 21.5.2001 at 2.20 p.m. at Police Station Kotwali. The relevant General Diary entry is Exhibit Ka-16.

6. Record also reflects that on 25.5.2001 one Chandra Bhan Giri son of Shivdas Giri, gave written information/application to the effect that the dead body of his cousin brother Suresh Giri, who was missing since 14.5.2001, has been found on the shore of river at Chandpur Ghat. Aforesaid contents were taken down in the General Diary of 25.5.2001 at Serial No. 20 at 4.00 p.m. and information was given to the S.H.O. Kotwali through R.T. Set and the dead body was taken into possession/custody and the inquest for the same, was held on 25.5.2001, and it commenced around 4.00 p.m. In the opinion of inquest witnesses, it was suggested that dead body be sent for post-mortem examination for ascertaining the real cause of death, therefore, necessary formalities were undergone and the relevant papers in that context, were prepared, which are photonash as Exhibit Ka-6, Specimen Seal Exhibit Ka-7, Police Form 13 Exhibit Ka-8, Letter to R.I. Exhibit Ka-9 and letter to CMO Exhibit Ka-10. Thereafter, the dead body was sent to the District Hospital, Ballia, for autopsy, where the Doctor G. Khan P.W.6, conducted autopsy. He noted following ante-mortem injuries on the cadaver of the deceased Suresh Giri:

“Ante-mortem strangulation mark found in nature present on upper part of neck at head neck joint.”

7. The time, since death, was stated to be more than one week, and in the opinion of the doctor, the cause of death was due to ante-mortem