1. Heard Sri S. V. Singh, Amicus Curiae for the appellants, Sri J. K. Upadhyay, learned AGA assisted by Smt. Manju Thakur, State Law Officer.

2. This criminal appeal has been preferred by appellants Chandrika alias Jokar and Kalloo against the judgment and order dated 25.10.1990 passed by Session Judge, Fatehpur in S.T. No. 210 of 1990 by which both the appellants have been convicted and sentenced to imprisonment for life under Section 302 IPC read with Section 34 IPC and one year rigorous imprisonment under Section 323/34 IPC.

(A) In brief the facts of the case, as emerging out from the F.I.R. and the evidence on record are that when the complainant Suresh Kumar, his father Lalu Prasad since deceased and his younger brother Rajesh Kumar aged about 8 years while going back from their hut outside the village after taking their food to their house inside the village reached near the house of Mahabir near the Neem tree in the lane, they met Chandrika Chamar and Kalloo Kurmi, who were armed with shot guns. As Suresh Kumar flashed his torch at them Kalloo and Chandrika fired at Lalu Prasad and killed him. The complainant and his brother raised cries for help and tried to catch the assailants but both Kalloo and Chandrika after hitting the complainant with the buts of their guns on his back fled towards west in the lane. The doors of nearby houses were closed, therefore nobody came out of the houses to catch the accused. The occurrence had taken place at about 8.30 p.m.. It was further alleged that there was a dispute between the parties with regard to a piece of land and proceedings under Section 107 Cr.P.C. were drawn against both the parties which were compromised on 8th January, 1989. One day before the occurrence Ram Kishore while standing at him door had asked Kalloo and Chandrika to kill Lalu Prasad and had assured them that he would take care of everything. Their conversation was overheard by Nanku, who advised them not to do so and asked Lalloo to vacate the land. Nanku disclosed the aforesaid fact to the complainant and his father on the same day in the afternoon and pursuant to the conspiracy so hatched by Ram Kishore, Kalloo and Chandrika, his father was murdered by them. The written report of the occurrence Ext.Ka-1 was lodged at reporting chowki Bakewar on 01.08.1989 at 6.30 a.m.. The place of occurrence was stated to be at a distance of 8 kms. from the reporting chowki Bakewar, P.S. Jahanabad. In the first information report it was categorically averred that due to fear and darkness the complainant did not lodge the report in the night itself. Check FIR was prepared on the basis of the written report, Ext.Ka-5. A case was registered in the G.D. at Rapat No. 9 at 6.30 a.m. at the chowki. The copy of the G.D. is Ext.Ka-6. The inquest of the dead body of Lalu Prasad was conducted by S.I. Sri Udai Singh, who was posted as Chowki Incharge. I.O., who also prepared the inquest report Ext.Ka-7, diagram of the dead body Ext.Ka-8, challan lash Ext.Ka-9, letter addressed to the R.I. Ext.Ka-10, letter addressed to the C.M.O. for conducting the post mortem Ext.Ka-11. He collected blood stained and simple earth from the spot and prepared the fard Ext.Ka-12. He also asked the complainant Suresh Kumar to produce his torch and after inspecting it prepared the fard Ext.Ka-13 and gave it in his supurdagi. The Investigating Officer also inspected the crime scene and prepared it's site plan Ext.Ka-14.

(B) The post mortem on the dead body of Lalloo was conducted on 02.08.1989 at 3.30 p.m. by Dr. Sharad Mehrotra. The post mortem report is Ext.Ka-2. According to the post mortem report following ante mortem injuries were noted on the cadever of Lallu Prasad by Dr. Sharam Mehrotra:-

(I) Gunshot wound of entry 3 cm x 3 cm x cavity deep left side of scapular region, 18 cm below shoulder joint, direction from back to front. Blackening and tattooing were present around the wound.

(ii) Lacerated wound ½ cm x 3 cm x ½ cm below the ear on