(Delivered by Hon'ble Mukhtar Ahmad J.)

1. This appeal has been preferred against the judgment of conviction and sentence dated 30-9-1983, passed by Additional Sessions Judge, Mirzapur in Sessions Trial No. 385 of 1982 arising out of Case Crime No. 83/1981 under Section 147, 148, 149, 323/302 I.P.C. This appeal has been filed on behalf of 12 appellants out of which 7 appellants namely Mahadeo, Bhagwati, Janki, KaliDass, Buddhu, Shobhai @ Shobhit and Bandhu have died and appeal in their respect have already been abated. Now this appeal is being pressed on behalf of five surviving appellants namely appellant No.2- Ram Dhani, appellant No 3- Ram Pati, appellant No.5- Prem, appellant No.10- Ram Bali and appellant No. 11- Dulary. The sentences awarded to the surviving appellants are as under:

Ram Pati and Ram Dhani-each of them has been awarded imprisonment for life for the offence punishable u/s 302/149, Rigorous Imprisonment for six months u/s 323/149, and one year Rigorous Imprisonment u/s 148 IPC.

Appellant Prem, Ram Bali and Dularey-each of them has been punished with imprisonment for life for the offence punishable u/s 302/149, Rigorous Imprisonment for six months u/s 323/149, and six months Rigorous Imprisonment u/s 147 I.PC. All sentences were ordered to run concurrently.

2. Case of the prosecution is that on 9-4-1981 informant Ramji Dubey PW- 3 gave a written Tehrir to the police Station Chopan District Mirzapur that he is resident of village Bargawan Police Station Chopan District Mirzapur and looks after the farming of Sant Kumar Tiwari in village Karji. That in the morning Ram Pati Baiga of Village Bargawan was collecting Mahua of Sant Kumar Tiwari. He and Jag Deo Khatik s/o Buddhoo restrained him from doing so and ran him away but Ram Pati Baiga went therefrom leaving serious threats. That in the evening at about 5 p.m. Ram Pati Baiga along with Bhagwati Baiga s/o Ganpati Baiga, Prem Baiga s/o Bhagwati Baiga. Pusay Baiga s/o Ganpati Baiga, Buddhu Baiga s/oMahadeo Baiga, Ram Bali Baiga s/o Mahadeo Baiga Janki Baiga, Sobhai Baiga, Dularey Baiga s/o Sobhai Baiga, Kali Dass Baiga, Ram Dhani Baiga and Bandhu Baiga s/o Kali Das Baiga all of village Bargawan forming a goal having Tir Kaman, lathi, Balua in their hands, came in Khalihan of mahua belonging to Sant Kumar Tiwari, near to his residence in village Karji. At that time informant and Jagerdeo Khatik were collecting mahua in the khalihan. Ram Pati Bega exhorted to kill us, on this all the accused persons started to assault informant and Jager Deo Khatik with arrows and lathies. On their hue and cry Shiv Tahal Pw2, Jai shree and Kallu, who were present on the door of Sant Kumar Tiwari rushed there then accused persons fled away therefrom. That Jagerdeo Khatik succumbed to the injuries sustained. Informant was also assaulted and he also received injuries in the incident. On that tahrir first information report was registered against aforesaid accused persons.

3. Investigation was taken over by Yogendra Singh, station officer of police station Chopan Mirzapur. He recorded the statement of first informant Ram Ji Dubey and sent him for medical examination to primary health centre and reached on the spot, conducted inquest of dead body of the deceased, thereafter sent the dead body in sealed position for postmortem with necessary papers through constables Vijay Tiwari Pw-8 and Hardeo singh. He also recorded the statements of the witnesses and visited the spot, collected simple and blood stained soil and also prepared site plan.

4. Upon completion of the investigation 13 accused persons named in the first information report were charge sheeted. Before committal one accused Pussey died, so case in his respect was abated and for remaining accused persons the matter was committed to the court of session for trial, where charges were framed against accused persons. They did not plead guilty and claimed to be tried.

5. In order to substantiate the charges as many as 11 witnes