JUDGMENT

B.C. Jauhari, J. - This appeal has been filed by Shyama Charan. Ram Laraitev, Phool Chand. Ram Niwas and Naresh who have all been convicted under Sections 302/149 [PC. and have been sentenced for imprisonment for life. Shyama Charan, Ram Laraitey and Phool Chand have been further convicted under Section 146 Indian Penal Code. and have been sentenced to three years rigorous imprisonment. Ram Laraitey v. Ram Niwas and Naresh have also been convicted under Section 147 Indian Penal Code. and have been sentenced to undergo rigorous imprisonment for a period of two years. All the sentences have been ordered to run concurrent - vide the judgment of Sri Giri Raj Kishore. IIIrd Addl. Sessions Judge. Shahjahanpur dated 6-6-1977.

2. The prosecution case is that two years prior to the occurrence Shyama Charan and Ram Laraitey who are real brothers had an altercation with the deceased Ram Naresh and his brother Ram Kumar P.W. I and injuries were received by Ram Laraitey and Shyama Charan. Ram Laraitey had lodged a report but no action was taken and on that account they bore enmity with deceased and Ram Kumar. On 11-5-1976 at about 10.30 a.m, deceased Ram Naresh and his brother Ram Kumar P.W. 1 started from their village Usmanpur and were going to market Sathra to purchase ghee. In the way they had to cross a river Bichhiachhutti. This river was covered by a narrow wooden bridge. While they were on this bridge, the accused-appellant Ram Laraitey, Ram Niwas and Naresh came armed with lathis. Ram Laraitey and Ram Niwas caught hold of the deceased and they strangulated him and knocked him down to the river. The accused-appellant Ram Naresh turned towards Ram Kumar to catch him but Ram Kumar ran towards Usmanpur and raised an alarm. He had gone about 100 paces when he met the witnesses Ram Pal P.W. 3, Khajan P.W. 4 and Samar Pal Singh who were also going to Bazar. He mentioned about the incident to them and they all then went towards the wooden bridge. As they were 40 or paces away from the place of occurrence. the appellant Shyama Charan armed with a gun accused Phool Chand armed with a spear challenged them not to proceed ahead if they wanted their lives to he Saved. This stopped the witnesses and the witnesses saw from there Ram Laraitey, Ram Niwas and Ram Naresh drowning the deceased Ram Naresh in the river killing him in a few minutes. Thereafter. Ram Laraitey uttered that the work was finished upon which the accused Shyama Charan and Phool Chand joined them and all the five accused went away towards the west. The witnesses Ram Kumar. Ram Pal and Khajan went towards the river and took out the hodv of the deceased Ram Naresh from the water and placed it on the bank. Then Ram Kumar P.W. I wrote out his report Ex.Ka.l and went to police station Kalan A here he lodged a report at 12.30 p in the same day. The report was taken down by Gorakh Prasad, Clerk-constable who registered a case in the General Diary. The Investigating Officer Kali Shanker P.W. 6 was not present at the police station and papers were sent to him. He, thereafter. reached the place of occurrence in evening the same day and after nominating the Panches prepared an inquest report and sealed the corpse and sent it for post-mortem examination through constable Mukarram Hussain.

3. The post-mortem on the dead-body was conducted by Dr. S. P. Srivastava P.W. 2 who found no external mark of injuries as the body had decomposed. This post-mortem was performed on 13-5-1976 at 13.30 O'clock. The internal examination revealed that larynx was fractured and there was a contusion in the neck and stomach contained about 250 grams of digested food along with dirty water and mud. In the )pinion of the doctor the death was due to asphyxia as a result of drowning.

4. The investigation was taken up from Kali Shanker P.W. 6 by Bhupal Singh P.W. 5 who interrogated the witnesses and submitted a charge-sheet in the case.

5. The accused pleaded not guilty and attributed their implication in th