Krishna Murari, J.

1. This criminal appeal has been filed against the Judgment and order dated 16.4.1983 passed by learned I-Additional District and Sessions Judge, Varanasi whereby the accused-appellants Mataru @ Ganesh Shanker, Munnu, Ashok, Sapan Bengali and Babu Lal have been convicted and sentenced to six months RI under section 147 IPC and life imprisonment under sections 302/149 IPC.

2. The prosecution story in brief is as follows:-

The first informant Pappu son of Ghurahu Yadav lodged the first information report on 5.6.1979 stating therein that at the time of incident he was present at the photo shop of Bachcha Singh son of Damodar Singh. The shop is situated in the house of Ram Sharan Mahant in Vishwanath Gali. At about 2.30 P.M. he saw that Pheku Sardar was coming from Kalika Gali and when he reached at the corner of the gali which is in front of the photo shop, accused Mataru, Ashok, Munnu, Pappu, Babu Lal and Sapan Bengali who were already present in Vishwanath Gali stopped Pheku Sardar and altercation took place between them with regard to the pairvi being done by him against Sheo Sardar. Accused persons over powered Pheku Sardar and pushed him to ground and attacked him with legs, fists and stone. On alarm being raised by Pheku Sardar, Sri Sheonath Upadhyay and other reached there. Sohan who was also present on the spot, went away from the place of occurrence towards south of Kalika Gali at the time when Pheku Sardar fell down and all the named accused persons were continuously giving blow to Pheku Sardar till he died on the spot. It is also alleged in the FIR that accused Ashok said that since deceased Pheku Sardar had died, information of his death be communicated to Sheo Sardar and Bholey Sardar through Ganesh Chaubey and Vijay Bhaiya that their entrusted task has been done. Thereafter accused persons escaped towards Saraswati Phatak. The reason of the murder of Pheku Sardar is alleged to be that accused persons are member of Sheo Sardar party and Pheku Sardar was doing pairvi against Sheo Sardar in a murder case and because of this enmity the murder of Pheku Sardar has been committed after hatching the conspiracy with Sheo Sardar and Bholey Sardar. On the basis of the written report (Exhibit Ka-3) chik FIR was prepared on 5.6.1979 at 3.20 P.M. at police station Dasaswamedh. The distance between place of incident and police station is alleged to be 2 ½ furlongs. After registration of the F.I.R. investigation was handed over to Jagannath Singh, P.W. 6 who reached the place of occurrence, prepared the inquest report of the dead body and sent the same for post mortem examination. He interrogated the witnesses, inspected the spot and prepared sketch map (Exhibit Ka-11), thereafter on 9.6.1979 Sri Ram Pal Singh, P.W. 7 took up the investigation of the case, he interrogated the witnesses, recorded their statements under section 161 Cr.P.C. and after completing the investigation submitted the charge sheet (Exhibit Ka-12) against accused persons.

3. The learned trial Judge framed the charges against all the accused persons under section 147 and section 302 IPC read with section 149 IPC. Accused pleaded not guilty and claimed for trial.

4. The prosecution examined Pappu P.W. 3, who is also informant of the case, Sheonath Upadhyay P.W. 4 and Sohan P.W. 5 who were eye witnesses. Dr. N.S. Sharma P.W. 1 who conducted the post mortem examination, Sheo Dutt Vishwakarma P.W. 2 who took the dead body for post mortem examination, Jagannath P.W. 6 and Ram Pal Singh P.W. 7 the two Investigating Officers were also examined.

5. P.W. 1 Dr. N.S. Sharma conducted the post mortem examination of the corpus of Pheku Sardar on 6.6.1979 at 4.45 P.M. As per the post mortem report probable age of the deceased was 45 years and of an average built. Rigor Mortis was present on the lower limb. Decomposition had started. There was greenish discolouration over the abdomen. Eyes were closed. There was bleeding from the nose and mouth. Doctor o