Dinesh Kumar Singh, J.

Heard Sri Vijay Singh Gour, learned counsel for the appellant and Sri Ratnendu Kumar Singh, learned A.G.A. for the State.

2. The Criminal Appeal No. 8335 of 2008 has been preferred against the judgement and order dated 29.11.2008 passed by Additional District Judge/F.T.C.- 1, Court No.4, Chitrakoot delivered in S.T. No. 104 of 2006, State Vs. Raj Bali Tewari and one another under Section 302 I.P.C. read with Section 34 I.P.C. and Section 307 I.P.C. read with Section 34 I.P.C., P.S. Raipura, District Chitrakoot arising out of Crime No. 24 of 2006 and the other Crl. Appeal No. 8337 of 2008 has been preferred against the same judgement and order arising out of S.T. No. 105 of 2006, State Vs. Raj Bali Tewari @ Badka Tiwari under Section 25 Arms Act arising out of Crime No. 25 of 2006 and P.S. and District are the same, whereby the accused appellant has been convicted under Section 302 I.P.C. and has been awarded punishment of life imprisonment with fine of Rs. 5,000/- and in default of payment of fine, one year additional imprisonment and under Section 307 I.P.C., he has been held guilty and awarded punishment of ten years R.I. and fine of Rs. 3,000/- and in default of payment of fine, 6 months additional Imprisonment and both the sentences are directed to run concurrently. Further accused appellant has also been held guilty under Section 25 of Arms Act and has been awarded punishment of three years R.I. and fine of Rs. 1,000/- and in default of payment of fine, three months additional imprisonment. The co-accused, Dinesh Kewat has been acquitted of charges under Section 302/34 I.P.C. and Section 307/34 I.P.C.

3. Both the appeals are being decided together.

4. The prosecution version as disclosed from the F.I.R. is that Gajadhar Prasad Mishra son of Ram Swambar Mishra R/o village Babhet, P.S. Rajapur, District Chitrakoot who is first informant of the case lodged a written report, Exhibit Ka-1 stating therein that his real brother Kallu @ Ram Sawanre had a land dispute with Raj Bali Tewari, accused appellant son of Suraj Pal R/o Bhakharwar regarding which a consolidation case was pending. On 5.06.2006 in the morning, when he came to his brother, Kallu's house to take straw and was staying there for sometime, then at about 4:00 p.m., appellant also came to the house of Kallu along with the son of Natthu Chamar of his village on a bicycle and was talking to Kallu and his wife for compromise and had also drunk water with jaggery and at that time his brother, Kallu and his wife, Kusama were milking in front of Goruhaai Bakhri, right then appellant and son of Natthu Chamar reached near Kallu talking to each other and at about 7:30 p.m., he heard two shots of fires and in the meantime a scream of Kusama was heard, hearing which the informant reached Goruhaai Bakhri and saw that appellant Raj Bali Tewari @ Badka again made a fire upon Kallu, at this, the informant and Kusama both screamed loudly hearing which Basant S/o Shakal Narayan, Shiv Autar Mishra S/o Bhondu and many other persons reached there and challenged the accused-appellant and his companion, at this both the accused made three-four fires from their respective pistols, as a result of which, his brother, Kallu died on the spot and Chamelia (P.W.1), wife of Satku Prajapati and Kusama (P.W.3), wife of Kallu also became injured. He also mentioned in the F.I.R. that large number of the villagers had reached the place where the dead body of the deceased was lying, thereafter, he had gone to the police station along with the injured for lodging the report. At P.S. Raipura, Case Crime No. 24 of 2006 was registered against appellant, Raj Bali Tewari @ Badka Tewari and son of Nathu Chamar (name not known) under Sections 302 and 307 I.P.C. on the same day i.e. 5.06.2006 at about 8:40 p.m., the chick F.I.R., Exhibit Ka-16 was prepared and entry of the said case was made in G.D. (Exhibit Ka-17) as report no. 34 at 20:40 hours. On 5.06.2006, the investigation o