Hon’ble Chandra Dhari Singh, J.—The instant criminal appeal has been filed against the judgment and order dated 9.3.1983 passed by the 3rd Additional Sessions Judge, Rampur in Sessions Trial No. 241, 297 of 1981 and S.T. No. 19 of 1982, whereby all the four accused persons Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Ahmad were found guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced to undergo life imprisonment each of them. All the four accused persons were found guilty of the offence punishable under Section 364 I.P.C. and were further sentenced to undergo two years R.I. each. Accused Shafi Ahmad is further sentenced to undergo two months R.I. under Section 323 I.P.C. All the sentences shall run concurrently.

2. We have heard Sri Shahabudeen learned counsel appearing on behalf of appellant No. 1 Shafi Ahmad and appellant No. 4 Maqbool and Sri S.A.N. Shah, learned counsel appearing on behalf of appellant No. 3 Holu Shah @ Firoz and Sri Ram Yash Pandey, learned A.G.A. appearing on behalf of State, Sri Ramesh Kumar Arya, learned counsel for the complainant and perused the record.

3. Brief facts of the case are that the accused Shafi Ahmad, Siraj Ahmad, Shakir Ahmad, Holu Shah and Chanda Shah are real brothers and are sons of Bhola Shah. Accused Aziz Ahmad is nephew of Bhola Shah, father of the accused Shafi Ahmad. The accused Maqbool Shah is sister’s son of accused Shafi Ahmad. All the accused persons are the residents of village Sitora within the circle of police station Bilaspur, District Rampur.

About two months prior to the occurrence in question, a theft had taken place in the house of the accused Chanda Shah. About one and half month prior to the occurrence in question another theft had taken place in the house of accused Shafi Ahmad. Although no report about the alleged thefts was lodged by the accused but the accused persons suspected the participation of Shakoor Ahmad (the deceased) in the aforesaid thefts. To remove the doubt, a Panchayat was held in the village. In the said Panchayat, it was found that Shakoor Ahmad had no hand in the alleged thefts. The accused persons nevertheless continued to feel enmity against Shakoor Ahmad (deceased). They had serious doubt on the participation of the deceased Shakoor Ahmad in thefts. A day before the occurrence in question Ghafoor Ahmad (P.W.4), who is the father of deceased Shakoor Ahamad, was returning alongwith his younger son Jameel from his field to his house. When they reached near the school of the village Sitora, they heard that the name of Shakoor Ahmad, was discussed by the accused persons. They stopped near the school. They saw all the seven accused persons sitting in the school and talking among themselves. They were making plan of murder of Shakoor Ahmad. This conversation was heard by them. They came at home and Ghafoor Ahmad (P.W.4) told about this conspiracy to his wife Smt. Sakeena (P.W.3), mother of Shakoor Ahmad. He instructed her to warn Shakoor Ahmad on his return from Kichha.

On 18.4.1981 at about 12 noon, Shakoor Ahmad returned home in village Sitora from Kichha. At about 1 p.m. Ahmad Husain (P.W.1) brother of Shakoor Ahmad, Smt. Sakeena, mother of Shakoor Ahmad and Waheed, younger brother of Shakoor Ahmad were present in the house, at that time, four accused persons namely Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Shah entered into the house of Shakoor Ahmad and asked him to accompany them to explain his participation in the thefts. All the four accused persons forcefully took away Shakoor Ahmad to the house of accused Shafi Ahmad. Ahmad Hussain (P.W.1), Smt. Sakeena (P.W.3) and Waheed Ahmad (P.W.2) also followed the accused persons and requested them to release Shakoor Ahmad but they did not accede their request and they threatened them to return back otherwise ready to face the consequences. The accused Shafi Ahmad and Mahboob Shah had Tabal in their hands while accused