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 IIIrd Additional Sessions Judge, Sitapur, on 28.08.1982, convicting the appellants Raj Kumar, Jagannath and Mullu in Sessions Trial No. 100 of 1980 and sentencing them to rigorous imprisonment for life and fine of Rs. 1,000/- each under section 149 read with section 302 IPC, rigorous imprisonment of six months in default of payment of fine and one year rigorous imprisonment under section 148 IPC.

2. Wrapping the facts in brief, complainant alongwith his brother Krishna Behari @ Krishna (deceased) was going for bandage to Ganj Bazar, as deceased had sustained sprain in his foot. When they reached near the shop of Dr. Nisar at about 12.30 p.m. the accused Rajkumar @ Babu son of Bhabhuti armed with Ballam, his brother Jagannath armed with Kanta, Mullu son of Jagannath armed with Banka and Dinesh son of Kameshwar armed with gun, dragged the deceased and reached in front of liquor shop, where Kameshwar Pradhan son of Raghuveer armed with Banka, his brother Ram Autar having Lathi, Kaushal Kishore @ Karna son of Ram Autar having Banka, Ram Lakhan son of Shriram armed with gun and his brother Kanshiram having Katta(pistol) and Sriram son of Jagnu armed with Gandasa were standing. The accused Kameshwar Pradhan sought and abated to kill the deceased by severing the head of the deceased. Thereafter all the accused assaulted collectively on deceased with the arms in their hands. The complainant raised alarm then Om Prakash son of Ram Gopal, Virendra @ Babu son of Jai Daya, Chandrika son of Matadeen, Premsagar son of Channu Lal, Darbari Lal son of Asharfi Lal, Mangu Lal son of Rameshwar reached and witnessed the incident. They raised alarm, then the accused aimed the gun at them and threatened them to kill if they come forward, therefore, the complainant could not save the deceased. The accused severed the head of his brother (deceased). The accused Kameshwar Pradhan picked up the severed head and remaining accused dragged the body of deceased by his legs towards the field via road and grove of Vednath Taula. They followed the accused to some distance. Many villagers gathered there and the accused ablazed the dead body of the deceased. Elder brother of the complainant Pyare Lal and the ladies of his house and other villagers arrived and challenged the accused at the spot, then the accused took to their heels towards the field of sugar cane. The complainant Radhey Shyam and others extinguished the fire and took out the body and the head of deceased Krishna Behari @ Krishna from fire and brought the dead body of deceased to his home. It is also stated in the FIR that the complainant and the deceased were named in the murder of grand son Kameshwar Pradhan and the son of his brother-in-law (Sadhu) namely Subhkaran and they had previous enmity on this account with the accused.

3. On the basis of written report (Ex.Ka-1), a case of murder was registered on G.D. No. 20 (Ex.Ka-2) on 05.02.1979 at 14.00 p.m. The investigation was conducted by S.I. Shesh Ram Singh. He reached on the spot at 3.15 p.m. conducted inquest proceedings and prepared inquest report (Ex.Ka-6). Sealed the dead body and handed it over to Constable Ram Prasad at 4.15 p.m. He prepared Challan Lash (Ex.Ka-7), Photo Lash (Ex.Ka-8), Sample of the seal (Ex.Ka-9) and letter to the C.M.O. (Ex.Ka-10), inquest report and the copy of the FIR (Ex.Ka-11) and handed over these documents to the constable. The special report of the occurrence was forwarded from the police station at 2.50 p.m. through constable Rameshwar Prasad vide G.D. No. 21 (Ex.Ka-23). The investigating officer, S.I. Shesh Ram Singh recorded the statement of witnesses at police station and sent other police force in the search of the accused persons and he himself proceeded to inspect the place of occurrence. Prepared site plan (Ex.Ka-16) on the pointing out of complainant. Collected a