Hon’ble Rekha Dikshit, J.—This appeal assails the correctness of the judgment dated 08 November, 1983 passed by VIII Additional Sessions Judge, Bareilly, in State of U.P. v. Roshan Lal and others, the Additional Sessions Judge has convicted accused Roshan Lal, Piarey Lal, Bankey Lal and Kali Charan are convicted under Section 302 I.P.C. read with Section 34 I.P.C. and each one of them is sentenced to undergo imprisonment for life and also to pay a fine of Rs. 500/- each. If they fail to deposit the fine they will undergo R.I. for one year each.

2. The appellant No. 2 Piarey Lal son of Baldeo Prasad and appellant No. 4 Kali Charan son of Puran Lal died, during the pendency of appeal, the report of Chief Judicial Magistrate dated 18.4.2012 in this context is on record, therefore, the appeal against appellant No. 2 Piarey Lal and appellant No. 4 Kali Charan stands abated vide order dated 15.5.2012 of the Court, accordingly.

3. Now, we proceed with the appeal of appellant No. 1 Roshan Lal and appellant No. 3 Bankey Lal.

4. Narrated concisely, prosecution case against the appellant is that in the year 1979 complainant Chhotey Lal and the deceased Kunwar Sen had a quarrel with Roshan Lal accused and his brother Dhakan Lal on account of water dispute and after that incident Dhakan Lal was murdered. The deceased Kunwar Sen was an accused in the murder case of Dhakan Lal but he was acquitted from the Court in that case. Due to this account the family members of Dhakan Lal bore enmity to Kunwar Sen and complainant Chhotey Lal. On 14.9.1982 Chhotey Lal and deceased Kunwar Sen were cutting ‘chari’ from the field of Pandit Rameshwar which they had purchased from him. Nearby Rameshwar was also cutting his ‘chari’. At about 09:30 am. accused Roshan lal armed with a pistol, accused Piarey Lal and Bankey Lal armed with a Bhala and accused Kali Charan armed with a Kanta appeared on the spot from the western side of the field and Roshan Lal said loudly that their enemies were present and they should be killed and should not be allowed to escape. Hearing it complainant Chhotey Lal and his brother Kunwar Sen at once ran to save themselves. However, the accused persons followed Kunwar Sen and caught him at the chak road near the village. They pulled him down and the accused persons inflicted several injuries to him.

5. The dead body of the Kunwar Sen was sent for post mortem where he was examined by Dr. S.K. Khare (P.W.-3), Exhibit ka-10 is post mortem report, in which ante mortem injuries are as follows:

(i) Multiple incised wound ten in number on the top of the scalp of varying sizes from 3 cm to 2 cm x ½ cm scalp deep extending from the fore head to the superior Nuchal line transversely 6 cm above the right year to 10 cm above left ear.

(ii) Two punctured wound 1 cm x ½ cm bone deep on the right mastoid region.

(iii) Punctured wound 1 cm x ½ cm x muscle deep on the back of neck right side 7 cm behind right ear.

(iv) Incised wound 6 in number varying 2 ½ cm x ½ cm muscle and mouth cavity deep smallest wound length is 1 cm on the left side of the face.

(v) Incised wound through and through the upper lip 2 cm in the middle.

(vi) Two incised wounds 2 cm x ½ cm x bone deep x 3 cm x ½ cm x bone deep separated ½ cm from each other on the front of the chin.

(vii) Seventeen multiple punctured wound infront of the neck varying sizes 2 cm x ½ cm x tranchea deep and 1 cm x ½ cm x muscle deep.

(viii) Eleven punctured wound scattered on the whole abdomen and lower part of the chest varying sizes 3 cm x 1 cm and 2 cm x ½ cm x muscle and cavity deep.

(ix) Punctured wound two ½ cm x ½ cm x muscle deep on the back of right fore arms in the middle.

(x) Incised wound 2 cm x ½ cm x muscle deep on the back of right arm 2 cm above elbow joint.

(xi) Three incised wound on the darven of the left hand sizes 1 cm x ½ cm and ½ cm x ½ cm x skin and muscle deep.

(xii) Two punctured wound 1 cm x ½ cm and ½ cm x ½ cm x muscle deep on the root of the neck on the back.

(