The testimonies of related witnesses must be scrutinized carefully, especially when inconsistencies exist and the prosecution fails to prove its case beyond reasonable doubt.

JUDGMENT :

1. This Criminal Appeal arises out of judgement and order dated 11.05.1990 passed by the IIIrd Additional Sessions Judge, Sitapur in Sessions Trial No.663 of 1987 whereby the Appellant no.3 Mahesh has been convicted under Sections 302 and 147 read with Section 149 of the I.P.C. and sentenced to undergo life imprisonment, the appellant no.4-Jagdish along with appellant no.1- Banwari, appellant no.2-Moti Lal and appellant no.5- Babu Ram have been convicted under Section 148 read with Section 149 and Section 302 I.P.C. with life imprisonment.

2. Only two of the original five appellants i.e. appellant nos.2 and 4, namely, Moti Lal and Jagdish are alive as the appellant nos.1, 3 & 5, namely, Banwari, Mahesh, and Babu Ram died during the pendency of the Appeal and the Appeal in respect of them has already been abated.

3. The case of the prosecution as mentioned in the prosecution story written report Exhibit Ka-1 and the F.I.R. Exhibit Ka-2 of the paper-book is that on 27.04.1987, the informant Damodar Prasad, along with his uncle Vishwanath and cousin brother, Shiv Kumar were returning home after making a query from the Sawmill regarding cutting of logs of wood. As soon as all three reached Barhtara Taal around 6:30 P.M., the accused Jagdish son of Babu Ram along with Banwari, son of Paragdeen, Moti Lal son of Gokarna and Babu Ram son of Banwari and Mahesh son of Gokaran armed with deadly weapons appeared from the sugarcane field of Raghubar and on the exhortation of Jagdish, all of them attacked Shiv Kumar. Jagdish fired from his gun, Babu Ram attacked him on his neck with a knife and then all of them dragged Shiv Kumar to the sugarcane field of Raghubar. The informant Damodar Prasad along with his uncle Visvanath tried to shout for help but no one came and Banwari, Moti Lal and Mahesh tried to attack the informant and his uncle and also threatened them for life in case they reported the matter to the Police. As a result of such threat, the informant Damodar Prasad, along with his uncle ran to their home in the village Benipur and did not report the matter to the Police Station at night out of fear. They returned in the morning to search for Shiv Kumar and they found his body in a grove south of Barhtara Taal. The informant wrote out a written report (Exhibit Ka-1) and had gone to the Police Station to report the matter after leaving members of his family Suraj Prasad and Bhagwan Das and others near the dead body.

4. On the basis of said written report by Damodar Prasad, son of Suraj Prasad, dated 28.04.1987, F.I.R., Exhibit Ka-2 was registered as Case Crime No. 80 of 1987, on the same day at 06:25 A.M. against the accused for the offence under Sections 147/148/149 and 302 I.P.C. The Station House Officer Phool Singh Bhadoria rushed to the place of occurrence alongwith other policemen. On reaching the spot, he prepared the inquest report of the dead body and sealed it and sent it for post-mortem examination after completing other formalities and inspected the place of occurrence and prepared a site plan with index (Exhibit C-6). He then took the statements of witnesses and prepared an inquest report (Exhibit Ka-8). On receipt of post-mortem report and completion of investigation, charge sheet was prepared against the accused persons and filed in Court.

5. Separate charges were framed by the IInd Additional Sessions Judge against all the accused on 21.01.1988. The prosecution examined six witnesses, Damodar Prasad as P.W.-1, Vishwanath as P.W.-2, Head Constable Satendra Nath Trivedi as P.W.-3, Constable Umakant Yadav as P.W.- 4, Phool Singh Bhadoria as P.W.-5 and Dr. Gopal Swaroop, who conducted the post-mortem, as P.W.-6.

6. The statements of the accused under Section 313 of the Cr.P.C. were thereafter recorded. They denied the allegations and stated that they had been falsely implicated due to family dispute and long running enmity. The accused gave documentary and oral evidence. In the documents filed by them was a certifie