1. The instant criminal appeal has been directed against the judgment and order of conviction and sentence dated 28.02.1989 passed by the Special Judge (Dacoity Affected Area), Hamirpur, in Special Case No.137 of 1986, State Vs. Jagram and others, arising out of Case Crime No.23 of 1986, under Sections 302, 394, 201 and 411 IPC, Police Station Maudaha, District Hamirpur whereby appellant no.1 Jagram has been sentenced to imprisonment for life under Section 302 IPC, ten years rigorous imprisonment under Section 394 IPC, three years rigorous imprisonment under Section 201 IPC, whereas, appellant no.2 Patak Singh has been sentenced to three years rigorous imprisonment under Section 411 IPC. Sentences awarded against appellant no.1 Jagram have been directed to run concurrently.

2. It is noteworthy that in this case appellant no.2, Patak Singh was sentenced to undergo three years rigorous imprisonment under Section 411 IPC, which sentence he has suffered in its entirety and has remained in jail for 3 years, 8 months and 12 days. In the wake of above, he is not in custody at present.

3. Heard Sri B. Mallik, Senior Advocate assisted by Sri J.P. Tripathi, learned counsel for appellant no.1, Jagram and Sri Vijay Bahadur Shivhare, learned counsel for the appellant no.2, Patak Singh, Sri Saghir Ahmad and Sri J.K. Upadhyay, learned AGAs for the State and perused the record.

4. Facts giving rise to this appeal discernible from the record appear to be; that some written report was given at Police Station Maudaha on 02.02.1986 at 3:30 p.m. by the informant Lallu Ram son of Ram Sanehi, resident of Village Bhaista, Police Station Maudaha, District Hamipur, regarding recovery of some dead body, with allegations that herdsman Jai Karan son of Kandhi Yadav and some boys had taken their cattle for grazing in the morning on 02.02.1986 at Banjar near culvert of Pavar and some dead body was lying in the drain under Neem tree located towards eastern side of chak of Baiju. The dead body was stinking. There were Khaki clothes on the dead body. The dead body was not identifiable. A number of persons saw the dead body but could not identify the same. The information was given for taking appropriate action.

5. The contents of the aforesaid written report were taken down in the concerned check FIR at Case Crime No.23 of 1986, under Sections 302, 201 IPC on 02.02.1986 at 03:30 p.m. Report was lodged against known persons. Check FIR is Ext. Ka-4. On the basis of aforesaid entry made in the Check FIR, a case was also registered at concerned general diary entry no.19 at 03:30 hours at the same case crime number under aforesaid sections of IPC.

6. Thereafter, the investigation took place. Inquest of the dead body was held on 02.02.1986. It commenced at 05:15 p.m. and completed at 06:00 p.m. the same day. Inquest report is Ext. Ka-9. Relevant papers were prepared for sending the dead body for autopsy. Relevant papers are in the form of photonash Ext. Ka-7, and challan dead body, police form no.13 Ext. Ka-8. Thereafter the dead body was sent for autopsy at mortuary Hamirpur.

7. Record divulges that the post mortem examination of the recovered dead body was conducted by Dr. I.D. Mishra, at 3:30 p.m. on 03.02.1986 in the mortuary at Hamirpur. Approximate time from death up to the time of post mortem examination was calculated between 3 to 5 days. Since the dead body had suffered decomposition, the doctor has noted in the post mortem examination report that no external mark of injury was seen over dead body. On front of right forearm, there was tattooed picture of Lord Shiva and illegible writing probably name had also surfaced. Cause of death could not be ascertained, therefore, viscera was preserved. This post mortem examination report was since admitted to the defence, there fore, its formal proof was dispensed with and the same was marked as Ext. Ka-6.

8. We also come across fact that on 01.02.1986, a written report/application was moved by Shiv Prasad son of