JUDGMENT :

SUBHASH CHANDRA SHARMA, J.

1. The present criminal appeal emanates from the judgment and order dated 26.02.1997 passed by the learned Sessions Judge, Mirzapur in Sessions Trial No. 77 of 1993 (State vs. Lalji and Others) arising out of Crime No. 196 of 1991 under Section 302/34 IPC, Police Station Chunar, District Mirzapur whereby accused Lalji, Shyamji, Pyare and Chhotai have been convicted and sentenced under Section 302 read with Section 34 IPC with life imprisonment.

2. The prosecution case in brief is that on 26.10.1991 at about 4 p.m. Lalman, father of the informant was heightening the walls of the cow shed (Gaushala) on the land granted on lease with the informant, sister Savita, mason Chibilli and labour Sita. In the meantime, Lalji, Shyamji, Pyare and Chhotai equipped with lathies came there. While abusing they claimed the land belonging to them as their lease land. Lalman responded by saying that it was his lease land over which the old cow shed was constructed. At that Shyamji exhorted and all the accused persons started beating him with lathies. He ran for about 30-40 steps but the accused persons surrounded him and killed by beating with lathies. On hue and cry, Satyawan and Dhananjay came there and then the accused persons went away. The F.I.R. was lodged by the informant Shyam Bahadur on the same day at about 8.30 p.m. at the police Station Chunar as crime No. 370 of 1991, under Section 302 IPC. The detail of which was entered into G.D. Report No. 42.

3. The investigation of the case was handed over to S.I. V.P. Singh who proceeded to the place of occurrence and collected blood stained and plain soil from the spot and prepared the fard.

4. The inquest of deceased Lalman was conducted by S.I. V.P. Singh, inquest report was prepared in presence of witnesses, dead body was sealed, other essential papers were prepared and the dead body was handed over to constables Murtaza Ali and Chhangur Dubey for postmortem.

5. Dr. S.C. Srivastava conducted the autopsy on the dead body of Lalman on 27.10.1991 at 3 p.m. at District Hospital Mirzapur and prepared the postmortem report Exhibit Ka-2. Details of which are as under:

The dead body was brought in sealed cloth. Seal compared and found intact. The age of the deceased was about 60 years and time since death was about one day.

External Examination: Average built body. Rigor mortis passed off in upper extremities and was present in lower extremities. Blood clot was present in nostrils. Eyes were closed.

Ante-mortem injuries:

(1) Lacerated wound 3 cm x ½ cm x bone deep on right side of scalp, 8 cm above right external ear.

(2) Lacerated wound 8 cm x 2 cm x cranial cavity deep over right side of scalp posteriorly 5 cm above and posterior to right external ear. The underlying bone was fractured and brain matter was visible.

(3) Lacerated wound 2 cm x 1 cm x cranial cavity deep over posterior side of scalp on right side 2 cm below injury no. 2.

(4) Abrasion 4 cm x 1 cm over upper surface of right shoulder.

(5) Abrasion 2.5 cm x 1 cm over posterior surface of left elbow.

(6) Abrasion 2 cm x 2 cm over posterior medial surface of left arm 7 cm above left wrist.

(7) Abrasion 1 cm x 1 cm over posterior surface of left wrist.

Cause of death was mentioned as coma due to head injury.

6. After inspection of the place of occurrence, Investigating Officer prepared the site plan and recorded the statements of witnesses conversant to the facts of the case, thereafter concluded the investigation and found a case, prima facie made out under Section 302/34 IPC. After preparing the charge sheet, he submitted it to the court concerned.

7. The cognizance of the offence was taken by the court concerned and copies of prosecution papers were provided to accused persons in compliance of Section 207 Cr.P.C. and the case was committed to the court of session for trial.

8. Learned trial court framed the charges under Section 302 read with Section 34 IPC on the basis of material on record and after giving opportuni