Judgment

C. NAGAPPAN, J.

1. These two appeals are preferred against the common judgment of the High Court of Judicature at Allahabad in Criminal Appeal No.749 of 1996 and Criminal Appeal No.761 of 1996 dated 1.10.2007.

2. The appellants in Criminal Appeal No. 749 of 1996 are accused Nos. 1 to 4 and the appellant in Criminal Appeal No.761 of 1996 is the accused No.5, in the Sessions Case No.72 of 1985, on the file of Third Additional Sessions Judge, Muzafarnagar, and they were tried along with three other accused for the alleged offences under Sections 147,148, 307 read with Section 302 read with Section 149 and Section 452 of Indian Penal Code.

Sessions Court found accused Nos. 6 to 8 not guilty of the charges and acquitted them and at the same time convicted accused Nos.1 to 5 for the charge under Section 302 read with Section 149 IPC and sentenced them to death, subject to confirmation by the High Court; convicted them for the offences under Section 307 read with Section 149 of IPC and sentenced them to undergo rigorous imprisonment for a period of 5 years; convicted them for the offence under Section 452 IPC and sentenced them to undergo rigorous imprisonment for a period of 4 years, and had also convicted Veer Singh, A-1, Takal Singh A-2 and Balkar Singh A- 5, for the offence under Section 148 IPC and sentenced them to undergo RI for a period of 2 years and had convicted Amrik Singh, A-3 and Kamir Singh, A-4, for the offence under Section 147 IPC and sentenced them to undergo rigorous imprisonment for a period of one year.

3. Aggrieved by the conviction and sentence accused No.1 to 5 preferred appeals being Criminal Appeal No.749 of 1996 and Criminal Appeal No. 761of 1996 and a Reference regarding death penalty was also made to the High Court. Besides the State also preferred an appeal being Appeal No.1341 of 1996, challenging the acquittal of accused Nos.6 to 8. The Appeals and Reference were heard together and the High Court by its common judgment dated 4.12.1997 allowed the Criminal Appeals filed by accused Nos.1 to 5 and rejected the Reference and acquitted them of all the charges. It also dismissed the Criminal Appeal preferred by the State.

4. Challenging the said judgment the State of U.P. preferred Civil Appeal Nos.727 - 729 of 1998 and this Court allowed the appeals and remitted the matter to the High Court for fresh hearing. Thereafter, the High Court by common judgment dated 1.10.2007 commuted death sentence recorded against the -accused Nos.1 to 5 to one of life imprisonment and upheld the conviction and sentence imposed by the Sessions Court against them for all the charges by dismissing the appeals in Criminal Appeal No.749 of 1996 and Criminal Appeal No.761 of 1996. It also dismissed the State appeal preferred challenging the acquittal of accused Nos. 6 to 8. Aggrieved by the conviction and sentence accused Nos. 1 to 5 have preferred the present appeals.

5. The prosecution case as it discerned from the records is briefly, as follows : Shisha Singh and Mohar Singh were residents of village Dongpura, whereas Gurdip Singh was resident of adjacent village Varnau. On 13/14.7.1984, at about midnight Gurdip Singh heard firing and cries from the houses of Shisha Singh and Mohar Singh and armed with his licensed gun he along with Jassa Singh and Hazoor Singh moved towards the house of Shisha Singh. In the moonlight and the light of the torch he saw Kartar Singh and his son Mahender Singh standing on the roof top of the house of Shisha Singh holding gun and country made -pistol and Kartar Singh was shouting aloud to his sons Mahendra Singh, Lakkha Singh, Ginder Singh and Sinder Singh to eliminate the whole family of Shisha Singh and Mohar Singh and that none should escape away.

They fired several gun shots and Gurdip Singh withdrew himself back and at that time Harbans Kaur wife of Shisha Singh escaped from the house with injuries and came and told him that Kartar Singh and his four sons accompanied by all the four sons of S