JUDGMENT :

Narendra Kumar Johari, J.

1. The instant appeal has been filed against the judgment and conviction order of appellants passed by Special Judge/Additional Sessions Judge, Aligarh in Sessions Trial No. 699 of 1994, Crime No. 105 of 1994, under Sections 148, 302, 395, 506 I.P.C., P.S.-Sikandrarau, District-Aligarh.

2. By the impugned order learned Sessions Judge has convicted accused appellants Sunil Ballu, Dhannu, Avadesh, Ram Das, Ram Datt and Kanhai Lal under Sections 148, 302, 395 I.P.C. The Court has sentenced appellants for two years rigorous imprisonment under Section 148 I.P.C., life imprisonment under Section 302 I.P.C. and 10 years rigorous imprisonment and Rs. 5,000/- as fine to each appellants under Section 395 I.P.C. It has also been ordered that in case of default in payment of fine they will undergo rigorous imprisonment of two years. The court has acquitted all the appellants under Section 506 I.P.C.

3. During the pendency of appeal appellant no. 6-Ram Das and appellant no. 7-Ram Datt have died, consequently the appeal has been abated for them.

4. The fact of the case, as per prosecution, in brief is as under-complainant Ram Gopal has given a written application (tahrir) to S.H.O., P.S.-Sikandrarau, District-Aligarh dated 12.04.1994 that today at about 7.15 a.m. after defecation he was returning from forest to his home as he reached near goddess temple he saw that his neighbours Sunil, Ballu, Dhannu, Avadhesh, Kanhai Lal, Ram Das and Ram Datt opened fire on his son Satish with intention to kill him. His son was worshipping in the temple at that time. Due to fire-arm injury his son died on spot. Many persons including Rameshwer and Ghanshyam heard the sound of fire and his shouting. When complainant raised his voice and started running towards his house to save his life the aforesaid accused persons pursued him. They entered in his house and robbed his licencee gun, jewellery and cash by threatening his wife and servant. After committing robbery they fled away by giving threats of life.

5. On the basis of above tahrir, the F.I.R. was lodged against above persons under Section 396 I.P.C. at P.S.-Sikandrarau, District- Aligarh on 12.04.1994 at 9.30 a.m. as Crime No. 105 of 1994, under Sections 148, 302, 395 and 506 I.P.C, accordingly G.D. entry was made.

6. The investigation of offence was started by Sub-inspector Narendra Pal Singh with S.I. S.N. Rakesh. They reached on spot along with police force. The inquest report was prepared by Sub-inspector S.N. Rakesh and sealed dead body of deceased Satish was sent for postmortem with constables S.P. Dube and Kailash Singh. The investigating officer collected blood-stained and plain soil from the spot. He prepared recovery memo of Hawan Kund and Lota. He enquired about the occurrence from persons present on spot. He further took the statement of witnesses and prepared spot map.

7. During the investigation he recovered the weapons 2 kattas (countrymade pistols) and cartridges on the pointing out of accused Sunil and Ballu. After completion of investigation the charge-sheet against accused persons has been filed by investigating officer under Sections 302, 395, 397 I.P.C. After appearance of accused persons, charges were framed against them under Sections 148, 302, 395, 506 I.P.C. They denied the charges, accordingly trial proceeded.

8. As documentary evidence prosecution has filed original tahrir(Ex. Ka-1), chick F.I.R. (Ex. Ka-2), chick report Crime No. 204, of 1994 (Ex. Ka-3), inquest report (Ex. Ka-4), Chalan Nas (Ex. Ka-5), Sample Seal (Ex. Ka-6), letter to C.M.O. (Ex. Ka-7), photo dead body (Ex. Ka8), spot map (Ex. Ka-9), recovery memo blood-stain and plain soil (Ex. Ka-10), recovery memo of lota and hawankund (Ex. Ka-11), search memo of accused persons (Ex. Ka-12), charge-sheet (Ex. Ka-13), recovery of weapon (Ex. Ka-14), P.M.R. (Ex. Ka-15). Apart from that the prosecution has produced to Ram Gopal Sharma (first informant and eye witness) as PW-1, Ghanshyam as PW-2 (