JUDGMENT :

Renu Agarwal, J.

1. This appeal under Section 374 (2) Cr.P.C has been preferred by the convicted appellants Muntazim, Mustaqim, Rhimuddin and Idris against the judgment and order dated 19.09.1984 passed by Shri H.L. Kurel III-Additional Sessions Judge, Barabanki in Sessions Trial No. 241 of 1982 convicting and sentencing the appellants under Section 147 IPC to undergo one year rigorous imprisonment, and to further undergo 1½ years rigorous imprisonment under Section 148 IPC and to undergo life imprisonment under Section 302 IPC read with section 149 IPC.

2. Wrapping the facts in brief the deceased Haji Majid Ashraf Khan owned a house in Village Sipahiya, Police Station Mawai District Barabanki. He had raised his house on his own land adjoining to his house. The accused Idris claimed that adjoining land. There was unfriendly atmosphere between the two families A case was registered against the accused but he was acquitted of that offence. On account of this enmity, accused Idris had beaten Haji Ashraf Khan at Madhwa Nala.

3. Parnala of complainant’s house falls in Kolia between the house of the complainant and the accused Muntazim. The accused person had taken out parnala, raised a wall in the said kolia and prevented thereby flow of water of parnala. When the father of the complainant abstained the accused appellants from doing so, the accused started abusing and threatening his father. Complainant went to register a report in this regard to the police station concerned but the accused restrained their way and kept a watch standing in the ambush on their way. Therefore they could not lodged the FIR immediately.

4. The complainant along with other relatives Ejaz and Ashraf moved to the police station at about 4 p.m. As soon as they reached ‘Phool ka talab’ near Naya Purwa all the accused person appeared from their hiding place in the Behaya and chased them. The complainant any how managed to escaped by raising alarm but Haji Ashraf was an old man, therefore, he was overpowered by the accused Idris holding Ballam, accused Muntazir holding axe and the rest of accused person with lathi and continued to beat the deceased till his death near the house of Jagjeevan. The incident was witnessed by Sifat Ahmad, Abrar Ahmad, Nizamuddin, Ejaz Ahmad, Shahnawaz and Shabbir.

5. The matter was reported to police station Mawai and a case was registered as Crime No. 84 under Section 147, 148, 149 , 302 IPC Police Station Mawai and endorsed on G.D No. 22 on the same date. Investigation was conducted by Investigating Officer Gulab Singh Bhatia who recorded the statement of witnesses, inspected and prepared the site plan (Ex. Ka-6) and conducted inquest of deceased, prepared photo lash, challan lash, letter to C.M.O and other relevant papers and send the body of the deceased for inquest through constables recorded the statements of witnesses. He collected plain and blood stained earth, sealed and prepared the recovery memo on the spot (Exhibit Ka 7 and 8), and prepared recovery memo of blood stained cloth (Ghamcha) of deceased (Exhibit Ka-9). After collecting all the relevant evidences and noting down the result of post-mortem the Investigating Officer submitted charge sheet No. 22 of 1979 in court under Section 147, 148, 149, 302 IPC.

7. Convict appellants appeared in the Court and after taking cognizance, the Court concerned committed the case to the Court of Sessions.

8. The Sessions Court framed charges against all the accused. The accused abjured from the charges and claimed to be tried.

9. In order to prove the case against the convict appellants, the prosecution produced the following witnesses:

(A) P.W.-1 Mushtjab Ahmad.

(B) P.W.-2 Nijamuddin.

(C) P.W.-3 Gulab Chand Bhatiya Investigating officer.

(D) P.W.-4 Dr. Gopal Swaroop who conducted the autopsy on 08.08.1979 at 3 p.m. and found injuries on the body of the deceased.

(E) P.W.-5 Head Constable 35 Onkar Nath who prepared the chik report on the basis of written report. He proved the G.D entr