(Delivered by Hon'ble Naheed Ara Moonis, J.)

1. The instant appeal has been preferred assailing the judgment and order passed by the learned District & Sessions Judge, Kanpur dated 25.1.1984 passed in S.T. No. 219 of 1982 whereby convicting the appellant No. 1 Saheb Lal under Section 302 I.P.C. and appellant nos. 2 and 3 Raghunth and Kanhai under Section 302/34 I.P.C. to undergo sentence of life imprisonment. The trial court had acquitted Mangali by giving benefit of doubt. During the pendency of appeal the appellant no. 3 Kanhai had expired hence the appeal has stood abated against him by order dated 13.11.2017.

2. We have heard the learned counsel Sri Shekhar Awasthi on behalf of appellant no. 1 Saheb Lal and Sri A.K. Singh, learned counsel appearing on behalf of appellant no. 2 Raghunath and the learned A.G.A. Sri Syed Ali Murtaja on behalf of the State assisted by Sri Satish Pandey brief holder and have taken through the record.

3. The prosecution case in a short conspectus is that the first informant Anokhey Lal (P.W.1) son of Baldev, resident of village Karhi, police station Naubasta, district Kanpur lodged the first information report on 3.3.1982 at 7.30 P.M. in respect of an incident, which taken place at 5.30 P.M. on the same day against Raghunath, Kanhai (died during the pendency of the appeal), Mangali (acquitted by the trial court) and Saheb Lal that Laxmi Narain of his village was murdered one year ago. Kanhai who belonged to the party of Laxmi Narain had lodged a report against his brother Bhajan Lal and others in which Bhajan Lal was acquitted five months ago. On this count Kanhai and others were bearing enmity against the family members of the complainant, due to this enmity Saheb Lal and others who belong to the same party had fired upon his brother Bhajan Lal in respect of which a report was lodged by Bhajan Lal at police station Juhi, district Kanpur. Since then the accused party were bearing enmity and on account of that enmity on 3.3.1982 at 5.30 P.M. when his brother Bhajan Lal was returning towards his house from the shop of Dr. Yadav after taking medicine and as he arrived in front of the house of Ram Prasad then all the accused persons, namely, Raghunath and Kanhai armed with hockey, Mangali armed with lathi and Saheb Lal son of Mangali armed with pistol came from behind and shouted abruptly that Bhajan Lal should not be spared today. On the exhortation of Raghunath, Kanhai and Mangali, Saheb Lal had fired upon his brother Bhajan Lal who sustained firearm injuries on his back and fell down on the spot and died instantaneously. This incident was witnessed by Rajpal (P.W.3), Ram Sevak (P.W. 2), Raj Kishore and others of his village. The complainant and others had challenged and chased them but could not be apprehended as all the accused persons took to their heels by extending threat. The complainant came to the police station to lodge the first information report leaving behind the dead body amongst the villagers and his family members. The first information report was scribed by Rajpal (P.W.3) who was the eye witness of the occurrence.

4. In respect of the aforesaid incident the case was registered at 7.30 P.M. at police station Naubasta, district Kanpur against Raghunath, Kanhai, Mangali and Saheb Lal under Section 302 I.P.C. as case Crime No. 46 of 1982. The check report Exhibit Ka. 2 was registered in the general diary No. 32. A true copy of which was exhibited as Exhibit Ka. 3. The special report was also dispatched at 8 P.M. vide exhibit Ka. 4.

5. After the registration of the first information report against the accused persons P.W. 9 B.L. Gautam, Station Officer, police station Naubasta swung into action who was entrusted with the investigation. The Investigating Officer reached at the place of occurrence and the witnesses were interrogated by him. The dead body was taken into custody to conduct the inquest of the deceased, prepared the inquest memo, which was exhibited as Exhibit Ka.