(Delivered by Hon'ble Rajeev Misra, J.)

1. The present criminal appeals originate out of the judgement and order dated 22.12.2010, passed by the Additional Sessions Judge, Court No. 9, Azamgarh in S.T. No. 401 of 2004 (State Vs. Ramesh Chand Rai and Another), under Section 302 I.P.C., P.S. Tahbarpur, District Azamgarh, S.T. No. 402 of 2004 (State Vs. Ramesh Chand Rai) under Sections 3/25 Arms Act, P.S. Tahbarpur, District Azamgarh and S.T. No. 403 of 2004 (State Vs. Ganga Yadav) under Sections 3/25 Arms Act, P.S. Tahbarpur, District Azamgarh, whereby the accused appellants have been convicted under Section 302 IPC and awarded rigorous imprisonment along with fine of Rs. 20,000/- each. Upon failure to deposit the amount of fine, the accused appellants are to further undergo simple imprisonment of two years. Moreover, the accused-appellants were also convicted under Section 3/25 Arms Act and thus, they are to undergo rigorous imprisonment of one year along with deposit of fine of Rs. 2,000/- each. Upon failure to deposit the amount of fine, the accused-appellants are to further undergo additional imprisonment of three months.

(2) We have heard Sri V. P. Srivastava, learned Senior Counsel assisted by Mr. P.C. Srivastava and Mr. Rajesh Pratap Singh, learned counsel for the appellants in both the Criminal Appeals, Mr. Saghir Ahmad, the learned A.G.A. alongwith Mr. Rishi Chaddha, learned A.G.A. Mr. Awdesh Kumar Shukla brief holder for the State and Mr. K. P. Pathak, learned counsel for the complainant.

3. As per the prosecution story, one of accused-appellants Ganga Yadav S/o Pati Ram Yadav was sent to jail for illegally possessing country made gun (Katta) and live cartridges. It was his apprehension that Bal Chand Yadav was responsible for his arrest regarding the aforesaid and accordingly, he bore enmity with Bal Chand Yadav . On 6.6.2004, the first informant Deep Chand Yadav along with Bechan Yadav, Liladhar Yadav and Dinesh Yadav riding on two separate bicycles were going from Manjhari Bazar via khadanja Marg to their village. As they reached the house of Maikuram of village Manjhari on the Khadanja Marg, Bal Chand Yadav brother of Deep Chand Yadav, who was riding his motorcycle crossed them. Ganga Yadav and Ramesh Chand Rai, who were riding another motorcycle and were coming behind Bal Chand Yadav overtook Bal Chand Yadav as he reached the house of Sahku Yadav of village Atapur at around 7:30 pm which is situate at the end of the Khadanja Marg, Ganga Yadav and Ramesh Chand Rai stopped Bal Chand Yadav. Thereafter, Ganga Yadav with his country made gun fired at Bal Chand Yadav on which he fell down along with his motorcycle and died on the spot.

4. Deep Chand Yadav, brother of the deceased Bal Chand Yadav, gave a written report (Ext. Ka.1) of the aforesaid occurrence on 6.6.2004 at P.S. Tahabarpur, District Azamgarh, which was in his hand writing. On the basis of the same, an F.I.R dated 6.6.2004 (Ext. Ka.13) was registered at P.S. Tahbarpur District Azamgarh as Case Crime No. 240 of 2004 under Section 302 IPC. P.S. Haidarpur, District Azamgarh. A perusal of the F.I.R. will go to show that the same was lodged at 21.05 i.e 9.05 pm, naming the accused-appellants. The distance between the place of occurrence and the police station was shown to be 13 km, and the timing of the occurrence was shown as 7:30 pm.

5. Accordingly, the Investigating Officer P.W. 3 Suresh Yadav came on the spot on 6.6.2004 at around 12:00 pm along with two police constables He recovered the dead body and took the same along with him.

6. The inquest/panchayatnama (Ext. Ka.19) of the body of the deceased was conducted on the next day i.e. 7.6.2004. As per the panchayatnama/inquest report, the same commenced at 6:10 am and concluded at 7:25 am. In the opinion of the panch witnesses namely (I) Deep Chand Yadav (2) Pandhari Yadav (3) Ramnath Yadav (