JUDGMENT :

Renu Agarwal, J.

1. The present Criminal Appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order passed by IInd Additional District & Sessions Judge, Hardoi on 14.07.1982, in S.T. No.06 of 1982, arising out of Case Crime No.43/143, Police Station Pali, District Hardoi, convicting the appellants Ram Sahai, Bishram, Jograj and Motilal and sentencing them to rigorous imprisonment for life under section 302 read with section 34 IPC.

2. Wrapping the facts in brief, complainant Jhinguri son of Lochan, Resident Ahir Mauja Anta, had previous enmity with Ram Sahai as his brother Prakash (deceased) had fired at Ram Sahai 10 years ago and his brother was tried and convicted for the same with the imprisonment of 7 years and he come out of jail few days before the incident after completing his incarceration. Accused Bishram & Jograj are the real brother and nephews of accused Ram Sahai. Accused Motilal is also the nephew of Ram Sahai. On the date of incident i.e. on 11.07.1981 at about 6.30 p.m. complainant had gone for defecation near pond on the western side of village and his brother Prakash was going to home from the path situated on the north side of pond. He heard a sound of fire shot and saw his brother running towards village followed by Ram Sahai son of Diwani armed with katta, Jograj son of Murli armed with lathi, Moti son of Chote armed with Spear, Bishram son of Murli armed with Katta. His brother fell down on the western path near the house of Baijnath. All the four accused started beating and assaulting his brother with the arms in their hands. He rushed towards the place of occurrence and shouted to save his brother. Raghunandan, Bare, Darbari and many other villagers reached there and scolded the accused, but all the accused started threatening them and dragged & beat his brother, rushed towards western side of sugar cane field. They followed the accused keeping some distance, then the accused leaving the brother of complainant in the fields of Jawahar took to their heels towards western side. His brother sustained injuries of Kanta, Spear Bhala and Fire Arm. There was slight cut on the neck of deceased. The written report was moved to police station in the next morning and is explained in the FIR itself that he could not report in the night due to fear and darkness.

3. On the basis of written report FIR was lodged in Police Station Pali, District Hardoi and the investigation was entrusted upon S.I. Prahalad Tiwari, who recorded the statement of complainant and proceed to the place of occurrence immediately. He conducted inquest and prepared inquest report alongwith other connected papers Photo Lash, Challan Lash, letter to CMO and Letter to R.I, etc. The dead body was sealed and sent for postmortem examination to District Hospital Shahajahanpur. Investigating officer thereafter recorded the statement of witnesses. He visited to place of occurrence and found the bundle of grass at the place of occurrence and prepared site plain (Ex. Ka-9), collected grass and prepared recovery memo (Ex. Ka-10). Investigating officer collected six pellets and 3 bullets at the scene of occurrence. He collected the same and prepared recovery memo (Ex. Ka-11). He also collected plain and blood stained earth from two different places and prepared recovery memo Ex.Ka-12 and Ex.Ka-13, respectively. The investigating officer deputed S.I., B. P. Singh for the arrest of accused. Accused Ram Sahai and Bhishram were arrested on 15.07.1981 and Jograj and Motilal surrendered in court on 02.07.1981. After collecting essential evidence the investigating officer submitted charge sheet in the court on 24.07.1981.

4. All the accused were summoned in the court and after the compliance of section 207 Cr.P.C. all the accused were committed to the Court of Session for their trial. Charges were framed against the accused under section 302 read with section 34 IPC and read over and explained to the accused, who abjured from the charg