Krishna Pratap Singh, J.

1. This Criminal Appeal has been filed against a judgement and order dated 07.03.1983 passed by the IV Additional Sessions Judge, Bulandshahr in Sessions Trial No. 394 of 1982 arising out of Case Crime No. 159 of 1982, under section 302/34 IPC, police station Chandpur. By the impugned order the learned Additional Sessions Judge has convicted and sentenced the accused Rohtash, Sheodan, Suresh and Rajendra to life imprisonment under section 302 read with section 34 IPC.

2. After the appeal was filed in this Court, the appellants were granted bail by order dated 09.3.1983.

3. However, during the pendency of the appeal, appellants Sheodan, Suresh and Rajendra have died during the pendency of the appeal and vide order dated 04.4.2016 appeal filed on their behalf stands abated and only the appeal filed on behalf of appellant Rohtash survives.

4. The facts, as unfolded by the prosecution, in brief are that a written report (Ext. Ka-1) was handed over by the first informant Smt. Gajendri, wife of Raghuraj Singh, the deceased to the effect that litigation was going on between her husband on one side and Kamal Singh, son of Sher Singh of his village and others on the other over the land. Today at 10.30 AM when she along with her mother-in-law Kasturi Devi and husband Raghuraj Singh were working in her field, Rohtash, son of Tarif, armed with "Pharsa", Suresh, son of Tarif, armed with Balkati, Sheodan, son of Tarif was having axe and Rajendra son of Kamal Singh came to the field. Rajendra told Raghuraj that you pose yourself to be a big litigant, today I will teach you a lesson. At his instance accused Rohtash, Suresh and Sheodan with an intention to kill, attacked her husband with their respective weapons, due to which he fell down. On the shriek of her mother-in-law, Kunwar Pal, Fakira Khan, Jagvir and several other persons rushed to the spot. On the challenge of the witnesses, the accused fled away. She brought her injured husband to the District Hospital in a bullock cart.

5. On the basis of the aforesaid written report, a chik FIR, at case crime No. 159 of 1982, under Section 307 IPC, Ext. Ka-5 was prepared by the Clerk-Constable Shri Rajeshwar, who also made necessary GD entry in respect of registration of the case (Ext. Ka-6).

6. After the registration of the case, the investigation of the case was entrusted to PW-5 SI Mahavir Prasad, who after recording the statement of chik writer, straight away went to the District Hospital where the victim was hospitalized. In the hospital, the investigating officer, recorded the statement of the first informant Smt. Gajendri. Statement of Smt. Kasturi, could not be recorded by the investigating officer as she left the place for arranging money for the treatment of the victim. The statement of the victim could also not be recorded as he was unconscious. Thereafter this witness sketched the site plan on the pointing out of the informant, which he proved as Ext. Ka-7. He also collected the bloodstained and plain earth from the place of occurrence and sealed it in two separate containers and prepared their memos, which he proved as Ext. Ka-8. After the information about the death of the appellant was conveyed at the police station, the case was converted to one under section 302 IPC.

7. After the conversion of the case to one under Section 302 IPC, the investigation of the case was transferred to SI Mahavir Prasad, who after completing the necessary investigation, submitted the charge sheet against all the accused.

8. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Bulandshahr vide order dated 09.091982 framed the charges against all the accused.

9. To bring home the guilt of the accused-appellant the prosecution has examined as many as nine witnesses.

10. PW-1, Fakira, in his examination-in chief has deposed that on the date of incident when h