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

The instant appeal has been preferred on behalf of appellants, namely, Deo Singh, Bahadur, Bindu @ Brindawan, Manohar and Har Charan against the judgment and order dated 22.9.1986 passed by the learned Sessions Judge, Lalitpur in Sessions Trial No.56 of 1986, arising out of case crime no.95 of 1986 whereby convicting and sentencing the appellants for the offence under Section 302/149 IPC for life imprisonment, further convicting and sentencing the appellants, namely, Bahadur and Bindu @ Brindawan for the offence under Section 148 IPC for one year rigorous imprisonment and convicting and sentencing the appellants, namely, Deo Singh, Manohar and Har Charan for six months rigorous imprisonment under Section 147 IPC. All the sentences were directed to run concurrently.

During the pendency of appeal, the appellant Manohar had expired hence the appeal on his behalf has stood abated by order dated 9.8.2017.

The prosecution case in a short conspectus is that an FIR was lodged by the first informant Amar Singh (P.W-1) on 13.5.1986 at chowki in-charge police Pali, police station Jakhlaun, District Lalitpur stating therein that the complainant Amar Singh S/o Gorey Lal Lodhi is the resident of village Thagari chowki Pali, police station Jakhlaun, District Lalitpur. On 13.5.1986 at about 8 am his brother Khoob Chand came to Pali for the repair of his cycle Bahadur and Deo Singh S/o Shibu Lodhi, Manohar and Har Charan S/o Barey Lal Lodhi had started broken the roof of his brother Khoob Chand's house with ghan (sledge hammer), sariya (iron rod) and sabbal (crow bar). He and his sister-in-law Genda Rani (P.W-2) refrained them from doing so and stated to settle the dispute after arrival of Khoob Chand from Pali, but they did not pay any heed and broken down the roof (chhatti). Thereafter they had stated that they will not spare Khoob Chand alive. They proceeded towards Pali after breaking the roof. The complainant thought that they may not kill his brother, so he along with his sister-in-law Genda Rani and one, Sukh Singh of his village started for Pali to save his brother. The complainant had seen his brother on road who was coming from Pali towards Thagari on his cycle and accused persons, namely, Bahadur and Bindu were equipped with axe, Deo Singh, Manohar and Har Charan were having lathis who had surrounded his brother on the road near a Mahuwa (butter) tree and started assaulting him with intent to kill. The complainant, his sister-in-law and Sukh Singh shouted, at this they escaped from the spot leaving his brother as if he is dead. This incident had taken place at 10 am. The incident was witnessed by various persons who were in their adjoining fields. The complainant left his sister-in-law and Sukh Singh near his brother who was lying in an injured condition to lodge the FIR. On this report at outpost Pali Head Constable, Munna Khan (P.W-6) registered the FIR against all the named accused persons at about 10.40 A.M. on 13.5.1986. On the basis of the chik FIR the case was registered under Sections 147,148,149 & 307 IPC as case crime no.195 of 1986 and the same was entered in the general diary.

The injured was taken to Virda Hospital where he was declared brought dead by the Doctor. The information was received at police station and hence the case was converted under Section 302 IPC.

The investigation was entrusted to P.W-5 Asha Ram, Station Officer who arrived at Virda Hospital on the same day and taken in custody the dead body of Khoob Chand started inquest at 3 P.M. which was concluded at about 4 P.M. on 13.5.1986 and had prepared the inquest report and other relevant papers. Thereafter the dead body was sealed and was sent for postmortem to Lalitpur Hospital through Constable Lakhan Yadav and Constable Mohammad Islam Ahmad.

The autopsy of deceased Khoob Chand was conducted by Dr. R.K. Agarwal, P.W-4 on 14.5.1986 at 3 P.M.

The Doctor has found following ante-mortem injuries on the