JUDGMENT :

KARUNESH SINGH PAWAR,J.

1. Present criminal appeal under Section 374 CrPC has been filed against the judgment of conviction and sentence dated 18.3.1999, passed by Additional District & Sessions Judge, Barabanki in Sessions Trial No.448 of 192, Case Crime No.138 of 1991 under sections 364, 302, 379 I.P.C., P.S. Kursi, district Barabanki whereby and whereunder the appellant accused Subrati has been convicted and sentenced to undergo six years R.I. and to pay a fine of Rs.2000/-, with default stipulation, under Section 364 I.P.C. Other accused persons Subrati, Taukeer and Abul Hassan have been acquitted of the charges framed against them.

2. Heard learned counsel for the appellant Mr. Abhishek Mishra, learned Additional Government Advocate for the State Mr. Ashok Kumar and perused the record.

3. Prosecution case as per the first information report is that the informant Shashibhal Tripathi son of Brijbhushan is a resident of village Khanwaha, P.S. Deva, district Barabanki. Around three years ago, one Malik of Gausar was killed in village Kutlupur, P.S. Fatehpur, in which, son of the complainant was made accused. Since then, the entire family of Malik was inimical towards the family of the informant. It is for this reason that the son of the informant used to live in Lucknow and come home frequently. Today, at about 8.00a.m., he came home from Hero Honda. Subrati came to his house and asked him to accompany him to go to Gramsevak for urgent work. His son went with Subrati on Hero Honda. Then he received information that his son has been killed at 11.00a.m. in village Garhi, Mauja Kursi. Thus, the informant has suspicion that his son has been killed by Tauqeer, his father Abdul Hassan, resident of police station Kursi.

The first information report was registered on 2.12.1991 at 12.10p.m. and Case Crime No.138 of 1991 under sections 364, 302 I.P.C. has been registered.

4. The investigating officer inspected the place of occurrence, took the statement of prosecution witnesses, prepared site plan and after completing the formalities filed charge-sheet in the court of competent jurisdiction. After committal of the case to the Court of Sessions, charges were framed.

5. The prosecution to prove its case has produced as many as seven witnesses, viz. P.W.1 Shashibhushan Tripathi, P.W.2 Smt. Malti Tripathi, mother of the deceased, P.W.3 Smt. Rajkumari, wife of deceased, P.W.4 Dr. B.K. Verma who conducted the post mortem of the deceased, P.W.5 S.I. Shivdatt Singh, P.W.6 Azam Ali Khan who prepared the panchayatnama, Ext. Ka-7 and P.W.7 S.I. Rama Shankar Yadav who had investigated the case and filed charge-sheet.

6. P.W.1 in his examination-in-chief stated that around six years ago, one Malik, A.D.O.M.I. was killed in which his son Satish (deceased) was made accused and for this reason, the family of Malik was inimical to them. His son used to live in Lucknow because of fear. At the time of death, he was having a job of cycle in Mall kasba. He was having friendship with accused Subrati. Abul Hassan is the father of deceased Malik. Subrati was in collusion with Abul Hassan. His wife asked the deceased Satish not to have friendship with Subrati as he is in tie with Abul Hasan and others. The day deceased was killed, he came to him at about 8.00a.m. from Lucknow. Subrati came to call his son and said that they have to go to Block Deva. Both of them went on Hero Honda motorcycle to meet Gram Sevak. Thereafter, the complainant came to know that his son has been killed at around 11.00a.m. It is stated by the witness that his son has been killed by Subrati in collusion with Abul Hassan and Tauqeer. He has proved the written report, Ext. Ka-1.

In the cross-examination, witness has stated that Subrati used to often come to his residence when Satish was at home. His son was in the business of engine and cycle. On the date of incident he was at home and he(P.W.1) was also present. After 10-15 minutes of arrival of his son at home, Subrati came and on t