Hon'ble Sheo Kumar Singh-I, J.—Criminal Appeal No. 670 of 1982 has been preferred by appellants Bishambhar and Sheo Kumar sons of Kunj Behari against the judgment and order dated 30.8.1982 passed by Sessions Judge, Kheri, in Sessions Trial No. 422 of 1980 whereby accused-appellants have been convicted and sentenced as under:

U/s 302 IPC	Imprisonment for life
U/s 307 IPC	Five years’ rigorous imprisonment
U/s 324 IPC	Two years’ rigorous imprisonment
U/s 426 IPC	Two months’ rigorous imprisonment

2. Criminal Appeal No. 402 of 1983 has been preferred by the State against the same judgment and order passed in same sessions trial number whereby accused/respondents namely Pitambar, Ram Kumar @ Gangaram and Saroj Kumar have been acquitted of the charges levelled against them with the submission that on the basis of presence of these accused persons at the place of occurrence and assault on the complainant and his family members, they should also be convicted for this offence on the ground of common intention.

3. Since both criminal appeals arise out of a common judgment, they are being disposed of together by a common order.

4. The brief facts of the case are that the First Information Report was lodged by one Ram Rakhan Bajapi on 26.7.1979, which states that he and Ram Kishore were in a field in Muria Gangapur and they were busy in getting the paddy planted by their servants. Their servant Rajaram was also there. Rajaram went from the field to Muria Gangapur for fetching Sarawan. His family used to keep some of agricultural implements and cattle in Muria Gangapur. When Rajaram was returning from Muria Gangapur with buffaloes and Sarawan at about 7.00 a.m. on that day the buffaloes strayed in the fields of Pitambar who was in the fields. Annoyed with the fact that buffaloes entered into the fields, Pitambar beaten Rajaram with a danda and Rajaram sustained injuries. Bishambhar and Raj Kishore lodged protest against unwarranted act of Pitambar for beating their servant which culminated into altercations and abuses between Raj Kishore and Pitambar. At that time Pitambar left with the words that he would return back and teach them a lesson. He sent Rajkishore to fetch Shridhar and little after Shridhar alongwith Diwakar Deo, Balram, Sheo Bhagwan and Natthu Teli reached towards the field. Shridhar advised that the matter be peacefully settled and on that suggestion all left for Murai Gangapur and reached to the house of Natthu Pandey. Natthu Pandey was requested to get the matter amicably settled and it was about 8.30 a.m.. All the persons were sitting under Tarwaha of Natthu Pandey. In the meantime, accused Bishambhar and Sheo Kumar, armed with single barrel guns, alongwith Pitambar, who was armed with a lathi, Ram Kumar and Saroj Kumar, armed with dandas, reached there from south-west direction. They started to abuse the informant and other members present with him. In the meantime, Shridhar requested that they should be excused but soon thereafter accused Bishambhar and Sheo Kumar opened fire towards them and Saroj Kumar, Ram Kumar and Pitambar started exhorting Sheo Kumar and Bishambhar not to leave anyone alive. Due to fire used by accused Bishambhar and Sheo Kumar, Diwakar, Shridhar and Natthu Pandey got injured and the cattle which were tethered under the Tarwaha also sustained injuries. Natthu Pandey and Shridhar fell down under Tarwaha and Diwakar ran towards the main door of the house of Natthu Pandey. Accused Sheo Kumar and Bishambhar came nearer and again fired at Diwakar who fell down inside the threshold and Ram Rakhan ran into the house of Swami Dayal and saved himself. In the meantime, some labourers who were working in the field of Ram Rakhan came there and raised alarm and ran towards the place of occurrence. Thereafter, the accused persons ran away with their respective weapons. Aft