(Delivered by Hon.Bharat Bhushan, J.)

1. Two appellants have assailed the judgment and order dated 26.2.1983 passed by the then Sessions Judge, Banda in S.T. No.414 of 1982 (State Vs. Santosh Singh and others) arising out of Crime No.57 of 1982 under Section 302 read with Section 34 I.P.C., Police Station (P.S.) Bisinda, District Banda whereby Trial Judge convicted the appellants Brijesh Singh and Phullu Raliha and sentenced to undergo imprisonment for life.

2. Co-accused Santosh Singh and Mangal Singh have been given benefit of doubt and acquitted for the same offence by the aforesaid impugned judgment.

3. Prosecution story in brief is that appellants were residing in a village Punahur along with deceased Ramdhani. It is alleged that one Brij Bhushan was murdered some six years prior to the present incident along with Lallu. Brij Bhushan was father of appellant Brijesh Singh and two other accused Santosh Singh and Mangal Singh. Their associate Phullu Raliha was the brother of Lallu. A prosecution was launched wherein complainant of this case Gajraj, deceased Ramdhani and certain others were made accused. However, after trial they were all acquitted some three years prior to the present incident.

4. It is stated that prior to the present incident election for village Pradhan took place wherein Munna brother of appellant Phullu Raliha and deceased Ramdhani contested with several other persons. Both of them lost election. However, it is alleged that Munna perceived that he had lost election because of deceased Ramdhani.

5. Coming back to the present incident it is alleged that on 28.6.1982 at about 5:30 am deceased Ramdhani left his residence for easing himself. It is stated that complainant Gajraj Singh was following him. As soon as deceased Ramdhani reached in front of the house of Bablu Domar near well in a lane(gali), he was accosted by appellants Brijesh Singh, Phullu Raliha, Santosh Singh and Mangal Singh. Appellant Brijesh Singh and co-accused Mangal Singh exhorted the accused persons saying that an enemy has been found and should be eliminated whereupon appellant Brijesh Singh opened fire on his cousin deceased Ramdhani who fell down. Appellant Phullu also opened fire from his country made pistol but gun failed to discharge. Complainant Gajraj Singh (P.W.1) raised alarm along with his relative Phula wife of Mithai Lal and Raju son of deceased Ramdhani upon which all four accused fled towards southern side. The commotion attracted the neighbours and other village folks. Deceased Ramdhani succumbed to fire arm injury after gasping for some time. Fearing disappearance and concealment the cadaver of Ramdhani was brought back and placed in front of door of Ramdhani's residence. This incident is said to have occurred at 5:30 am in the morning and F.I.R. was lodged within two hours at P.S. Bisinda, district Banda which was 5 km. away from the place of occurrence.

6. P.W. 4 constable Vinod Kumar Dubey recorded the F.I.R. (Ext. Ka-1) in general Diary (G.D.) of P.S. Bisinda, the extract of which is available on record as Ext. Ka-6. Investigation was entrusted to P.W. 6 Devendra Singh Bhadauriya who immediately rushed to the place of occurrence around 9:10 am after recording the statement of complainant Gajraj Singh (P.W. 1) at police station itself. Inquest proceedings were conducted. The cadaver was sent to postmortem. The autopsy (Ext. Ka-2) was also conducted on 29.6.1982. The samples of blood stained earth and plain earth were taken. The statements of witnesses were recorded. Site plan (Ext Ka-18) was prepared. Finding sufficient evidence against appellants and two other accused, a charge sheet under Section 302 I.P.C. was filed against four persons, namely, appellants Brijesh Singh, Phullu, Santosh Singh and Mangal Singh.

7. Trial Judge charged appellants Brijesh Singh under section 302 I.P.C. on 17.11.1982 and on same day charged other accused persons, namely, Phullu, Santosh Singh and Mangal Singh under Section 3