Arvind Kumar Tripathi, J.

1. The present criminal appeal No. 1833 of 1984 filed on behalf of the accused-appellants Sahdeo, Shatrughan Singh, Shiv Saran alias Munshi Dubey and Shiv Das and the connected criminal appeal No. 1939 of 1984 filed on behalf of the accused-appellant Phool Singh have been preferred against the impugned judgment and order of conviction and sentence dated 5.7.1984 passed by IIIrd Additional Sessions Judge, Fatehpur in Session Trial No. 123 of 1982 State Vs. Sahdeo and 4 Others, arising out of Case Crime No. 121 of 1981, P.S. Asothar, convicting and sentencing the accused-appellants Sahdeo, Shatrughan Singh and Shiv Saran, under Section 148 IPC for two years R.I., under Section 302/149 for life imprisonment and under Section 201 IPC for two years R.I. Accused-appellants Shiv Das and Phool Singh, under Section 147 IPC for one year R.I., under Section 302/149 IPC for life imprisonment and under Section 201 IPC for two years R.I. with the direction that all the sentences shall run concurrently. Hence, both the aforesaid appeals were heard and the same are being decided jointly by a common order.

2. During pendency of the appeal, accused-appellants Sahdeo and Shiv Das have died, hence, the appeal in respect of them stood abated vide order dated 25.10.2016. Now, the appeals have to be decided in respect of the accused-appellants Shatrughan Singh, Shiv Saran and Phool Singh.

3. Mr. Kamal Krishna, learned Senior Counsel assisted by Mr. Rajesh Kumar Srivastava, Advocate appeared on behalf of the appellants. Mr. Mahendra Singh Yadav, learned AGA appeared on behalf of the State of U.P. and Mr. Sharad Kumar Srivastava, Advocate appeared on behalf of the complainant.

4. The prosecution story in brief is that the F.I.R. was lodged by Jagdamba Prasad S/o Brij Kishore, brother of the deceased Luxmi Kant. According to the F.I.R. version, the accused persons and the deceased Luxmi Kant are resident of village Ainjhi. It is alleged that three years before, deceased Luxmi Kant, accused Sahdeo and their companions had committed dacoity in village Budhramau in which Luxmi was discharged on account of non-identification whereas Sahdeo was challaned and his case was committed to the court of Sessions. Thereafter 6 or 7 months before the present incident, accused-appellants Sahdeo, Shatrughan Singh and Shiv Saran had again committed a dacoity in village Malhipur where they have committed a murder also. They had asked Luxmi also to accompany in commission of dacoity but he had refused. Since Sahdeo and others were arrested in that dacoity, they suspected that Luxmi had informed their participation in commission of dacoity, and as such they were bearing enmity with him.

5. On 9.9.1981, Luxmi had gone to see his paddy crops towards his field to west of the village, along-with his brother Jagdamba Prasad (PW-1) and his sister Km. Bina (PW-2). At about 5.30 PM, they reached Shivriha field and were standing on one of the 'Mend'(demarcation line by soil) of the field. In the meantime, accused Sahdeo armed with axe, Shatrughan and Shiv Saran armed with Kanta, Shiv Das and Phool Singh both armed with lathi came suddenly from the side of the village and overpowered Luxmi and pushed him down in the field and began to beat. Jagdamba and Km. Bina were aghast and due to fear, they ran towards the village raising alarms. They saw all these accused persons dragging Luxmi towards south-west of the field. Alarm raised by them attracted Puttan, Krishna Pal and Babu Khan. They tried to rescue Luxmi Kant by chasing the accused persons, who left the dead body of deceased Luxmi in the field of Ram Narain and ran away towards the south-west. When they reached near the body of Luxmi, they found him dead. There was cut mark and injury on the neck of the deceased which was bleeding. On account of fear and night, Jagdamba Prasad did not go to the police station at that very time. Next day in the morning, he scribed a report (Ex. Ka-1) and lodge