(Delivered by Hon'ble Ravindra Nath Kakkar, J.)

1. This criminal appeal has been filed challenging the judgment and order dated 20.10.1981, passed by Session's Judge, Mirzapur, in Session's Trial No. 215 of 1980, convicting and sentencing the appellant under Section 302 I.P.C. to undergo life imprisonment.

2. Facts, in brief, are that complainant, deceased and accused persons belong to the same family and they reside together. Accused Gauri Shanker, Daya Shankar and Premchand are patidars and reside adjacent to the complainant residence. There is a dispute with regard to the boundary of their field. It transpires from the record that the parties had their cultivation in the village Chitawanpur and Baraipur long back 11 to 12 years ago. Partition took place between them and ever since the partition the parties were in possession of their respective plots except one plot in which both the parties were in possession thereof by half and half prior to this incident. On 5.7.1980 at about 3 p.m. deceased Kewla Shankar had gone to his filed where he weeded out unwanted plants and placed them on his mend which were blown by the wind to the field of the accused Gauri Shankar which is adjacent to the complainant field. Some altercation took place between the wives of Daya Shankar and accused Prem. They abused and used filthy language against Kewla Shankar. Thereafter, Kewla Shankar returned to his mill (karkhana) towards the north of the village where they carried the business of weaving daries. Radhey Shyam, Ramchandra, Gulab and Bishambhar his other co-sharers were also working there. After this incident at about 5 p.m. on the same day all the three accused came from their house armed with lathis and spear and started abusing and threatening the deceased. They arrived up to the karkhana (mill) of the deceased Kewla Shankar. At this time on hearing the filthy and abusive languages deceased Kewla Shankar, Gulab, Bishambhar, Ram Chander, Yunus and other persons arrived at gali of Chitawanpur Quanru bazar. Kewla Shankar asked them not to abuse him, on this Daya Shankar and Prem Chand who were armed with lathis exhorted to Gauri Shankar and on the exhortation of Daya Shankar and Prem Chand, Kewla Shankar tried to run away from the spot but Gauri Shankar attacked with ballam on the back side of the deceased Kewla Shankar who fell down and died instantly on the spot. The other witnesses who were accompanying Kewla Shankar raised alarm and chased the accused persons but they escaped along with lathis and ballam.

3. Kewla Shankar tried to escape but before he could run Gauri Shankar assaulted him with ballam blow which pierced his body and came out towards the chest. P.W.1 Radhey Shyam scribed the report Ex.Ka-1 and lodged an FIR at the police station at 10.30 p.m. The distance from the place of occurrence to the police station is 5 miles towards west south.

4. Head Constable Uma Shankar Singh recorded the FIR and registered the case in G.D. and informed the higher authorities by telephone and subsequently sent the special report. P.W.7 Rajaram Singh, Station officer, of the police station proceeded to the place of occurrence with Sub Inspector Varshney. He reached the place of occurrence at about midnight. Sub Inspector Varshney on the direction of the Station Officer had prepared the inquest report in the next morning at about 6:00 a.m. Site plan and other papers were prepared and the dead body was sent through Constables Amleshwar and Baskal for the post-mortem examination. Autopsy was performed by Dr. V.J. Khanna, PW-6, at 3:00 p.m.

5. Acccused Gari Shankar has been charged under Section 302 IPC while other two accused Daya Shankar and Prem were charged under Section 302 read with Section 34 IPC.

6. Prosecution examined ten witnesses in this case. PW-1 Radhey Shyam, the complainant, PW-2 Yunus, PW-3 Ram Chander have given ocular account of the occurrence. PW-1, PW-2 and PW3 are the eye witnesses of the incident. PW-4 Head Constable