(Delivered by Justice Mukhtar Ahmad J.)

1. Challenge in this appeal is to the judgment and order of conviction dated 17.1.1983 passed by Additional Sessions Judge, Moradabad in Sessions Trial No. 586 of 1979 (State Vs. Jhandu and other) under Sections 302, 307, 149 and 147 I.P.C convicting and sentencing the appellants to undergo life imprisonment under sanction 302/34 IPC and 4 years imprisonment under section 307/34 IPC. Both the sentences were ordered to run concurrently.

2. The facts of the prosecution case in brief are that first informant Mohar Singh and accused persons are residents of the same village ''Mangupura' having adjoining agricultural plots. There was some dispute with regard to the intervening boundary (maind) which was dismantled by Jhandu and other accused about 5-6 days before the present incident. The accused persons had threatened the complainant, who subsequently lodged a report under section 504, 506 IPC. In the intervening night of 23/24 July, 1979 informant Mohar Singh, his father Gokul, uncle Shivcharan, and Natthu s/o Shivcharan were sleeping in dalan on separate cots. A burning lantern was hanging on a Khuti in the same dalan. At about 2 a.m. informant Mohar Singh awoke hearing the noise of barking dogs and saw the accused persons just in front of the chabutra of the dalan. Accused Jhandu and Nanhey were armed with country made pistols while remaining accused persons Chhuttan, Sona and Ram Chandra were armed with lathies. The informant Mohar Singh intercepted and asked them as to why they were there. His father Gokul, uncle Shiv Charan and cousin Natthu also woke up and they also challenged them on which accused Chuttan said that they shall teach them a lesson for lodging FIR against them. They also started abusing the informant at which his father Gokul came down from the dalan and went near to the accused persons and asked them to go back to their houses as the matter may be settled in the morning. Accused Chhuttan then exhorted the co accused persons Jhandu and Nanhey to shoot him and accordingly Nanhey opened fire on Gokul with pistol and accused Jhandu fired towards first informant. Gokul succumbed to the injuries sustained. Natthu PW2 also receives pellet injuries on his fore head and thigh. Hearing the noise mother of the first informant, co-villager Munna Lal and others also reached on the spot. The informant and the witnesses watched the incident in the light of the lantern.

3. The first information report was lodged by Mohar Singh, P.W.1, son of the deceased on 24.7.1079 at 10.45 A.M. at police station Belari, District Moradabad, which is situated at a distance of 9 miles from the place of occurrence.

4. The matter was investigated by Sub Inspector R.S.Tomar PW6, who visited the spot, conducted the inquest, prepared the site plan and recorded statements of the witnesses and after concluding the investigation submitted charge sheet against all the accused persons under Sections 147, 149, 307 and 302 I.P.C. The concerning Magistrate committed the case to the Court of Sessions where charges under aforesaid sections were framed. Accused persons pleaded not guilty and claimed to be tried.

5. To substantiate the charges against the accused persons as many as seven witnesses were examined on behalf of the prosecution.

6. P.W.1 Mohar Singh is the son of the deceased and first informant of the incident as well as eye witness of the incident. P.W. 2 Nathoo is the injured eye witness of the incident. P.W.3 is Dr. S. Agarwal who had examined the injuries of Nathoo. He has proved the injury report. P.W. 4 Suraj Pal Singh is the Head Constable who prepared the Chick FIR and he has also proved the same. P.W. 5 Dr. Ram Teerath is a witness who had conducted post mortem on the body of the deceased Gokul Singh. He found following injuries on the dead body of the deceased-

(1) Multiple gun shot wounds in an area of 22 cm x 13 cm on the right side of whole neck and some part front also and lower