R. K. RASTOGI, J. This is an appeal against judgment and order dated 29. 6. 1981 passed by Sri B. B. S. Chaudhary, then XIth, Addl. Sessions Judge, Kanpur in Sessions Trials No. 328 of 1979 and 298 of 1980, State v. Ram Babu and others. 2. The facts relevant for disposal of this appeal are that on 2. 9. 1979 a F. I. R. was lodged by Bhajan Lal at 11. 30 P. M. at police station Kakwan district Kanpur, in which he staled that on the aforesaid date at about 8. 30 P. M. Ram Saran Bahelia came to his house from Ambari Har and told him that his brother Raj Kumar Pradhan had been murdered in Usar land between village Anayee and Sargavan and then Bhajan Lal and a large number of persons residing in village Nadiha went to that place and they saw dead body of Raj Kumar in that field of Mohan Lal Dhanuk of Sargavan. He had injuries upon his body. His cycle was lying there and another cycle and one pair of Chappals were also lying there. Then he left his brother Raghubanshi and other persons of the village there and went to the police station and lodged the report. 3. On the basis of above report the police registered case crime No. 130 of 1979 against the unknown culprits and took up its investigation. The dead body of deceased was sent for post-mortem examination and it was performed on 4. 9. 1979 at 2. 15 P. M. The deceased had the following ante-mortem injuries upon his body: 1. Gunshot wound of entrance circular 1 cm x 1 cm on the right side of face, just close of Rt. eye brow. Blackening present and margins of wound inverted and lacerated. 2. Gunshot wound of exit 1-1/2 cm x 1 1-1/4 cm close to Rt. Alkinasi, margins lacerated everted. No blackening present. Shot passed underneath the zygomatic bone fracturing maxilory sinus and right nassel, and went through right alunisy. 3. Incise wound 4-1/2 cm x 1 cm x scalp deep on Rt. side of head 8 cm above Rt. ear. 4. Incised wound 3-1/2 cm x 1 cm x bone deep on the front of head, 7 cm above the edge of nose. Bone underneath partially cut. 5. Gun shot wound of entrance circular 1 cm x 1 cm. 3. Incise wound 4-1/2 cm x 1 cm x scalp deep on Rt. side of head 8 cm above Rt. ear. 4. Incised wound 3-1/2 cm x 1 cm x bone deep on the front of head, 7 cm above the edge of nose. Bone underneath partially cut. 5. Gun shot wound of entrance circular 1 cm x 1 cm. on the left arm in middle portion. Margins inverted. Blackening present around the wound. 6. Gunshot wound of exit 1-1/2 cm x 1 cm on upper arm margins, lacerated and everted wound No. 5 & 6 connecting with each other. 7. Gun shot wound of entrance circular 1 cm x 1 cm x abdomen cavity deep on the left side of chest lower pan 14 cm below left nipple. Margins lacerated & inverted, blackening present. 8. Gun shot wound of exit 1-1/2 cm x 1-1/4 cm on the back of Rt. side in post axillary line 11 cm above the iliac crest, margins lacerated and everted. No blackening, shot passed between 10th and 11th ribs rupturing diaphrogram, omenture intestine small and large. 4. In the opinion of the doctor the death had taken place 2 days before the time of post-mortem and the death was due to shock & haemorrhage caused by ante-mortem injuries. 5. It is alleged that during investigation names of Ram Babu, Anand Kumar, Sadashiv, Shiv Shyam, Ram Nath alias Mauni, Mool Chand, Shravan Kumar alias Bare, Chandra Kishore alias Bable, Radha Raman, Shesh Narain, Ram Ratan, Kailash, Kripa Shanker, Shyam Babu and Shambhu Dayal came into light. The police after completion of the investigation of the case submitted two separate charge-sheets under sections 147, 148, 149, 302 and 120-B, I. P. C. , one against first 13 accused persons on the basis of which S. T. No. 328/1979 was registered against them and the second against the remaining two accused persons, named, Shyam Babu & Shanker Dayal on the basis of which S. T. No. 298/1980 was registered against them. 6. The learned Addl. Sessions Judge, to whom the cases were transferred after committal proceedings, consolidated both the cases, framed charges under sections 120-B & 302/149 I. P. C. against Ram Babu, Anand Kumar, Sadashiv, Shiv Shyam, Ram Nath alias Mauni, Mool Chand, Shravan Kumar alias Bare, Chandra Kishore, Radha Raman, Shesh Narain, Ram Ratan. Kailash and Kripa Shanker. 6. The learned Addl. Sessions Judge, to whom the cases were transferred after committal proceedings, consolidated both the cases, framed charges under sections 120-B & 302/149 I. P. C. against Ram Babu, Anand Kumar, Sadashiv, Shiv Shyam, Ram Nath alias Mauni, Mool Chand, Shravan Kumar alias Bare, Chandra Kishore, Radha Raman, Shesh Narain, Ram Ratan. Kailash and Kripa Shanker. He also framed charge under section 148 I. P. C. against accused Ram Babu, Anand Kumar. Sadashiv, Shiv Shyam, Ram Nath alias Mauni, Mool P Chand. Shravan Kumar alias Bare and Chandra Kishore alias Bable. Accused Radha Raman, Shesh Narain, Ram Ratan, Kailash and Kripa Shanker were charged under section 147 I. P. C. and accused Shyam Babu and Shambhu Dayal were charged for the offences under sections 120-B and 302/149 I. P. C. All the accused pleaded not guilty and claimed to be tried. 7. Rajjan Lal was examined by the prosecution as P. W. I. He has stated that on the date of incident at about 6. 30 P. M. he heard sound of a fire at the place where the dead body of Raj Kumar was found and he and some other persons residents of village Sargavan rushed towards that place and he saw Ram Babu, Chhotey and Chhotkauna running away from that place towards Garheva. Ram Babu had revolver in his hand, Chhotey had a small gun with him and Chhotkauna had a Sabbal in his hand. When he questioned those accused persons as to why they were running away, they pointed revolver towards him and asked him to do his work. He also saw Shiv Shyam, Mool Chand, Shravan Kumar, Bable alias Chandra Kishore and Mauji. Running towards north. Shiv Shyam had revolver in his hand, Mauji had belt of tractor in his hand, Mool Chand and Shravan Kumar had spears and Bable alias Chandra Kishore had Pharsa in his hand. He had seen the aforesaid accused persons from a distance of 100 paces. Thereafter he reached that place at about quarter to seven where the dead body of Raj Kumar was lying. A cycle was also lying there and it was of Bachchan. Accused Shravan Kumar is son of Bachchan. Raj Kumars cycle was also lying there. A pair of Chappals was also lying there which belonged to Mauji. He also identified that pair of Chappals as Ex. 1. A cycle was also lying there and it was of Bachchan. Accused Shravan Kumar is son of Bachchan. Raj Kumars cycle was also lying there. A pair of Chappals was also lying there which belonged to Mauji. He also identified that pair of Chappals as Ex. 1. He further stated that Shivshyam, Bare alias Shravan Kumar, Mool Chand and Bable after purchasing Biri from the shop of Ram Shanker went towards Barha. He also identified cycle of Raj Kumar as Ex. 2 and cycle of Bachchan Ex. 3. 8. Rajendra Bahelia, was examined as P. W. 2. He stated that on the date of incident when he was going along with Shiv Prakash, he had seen Sadashiv, Ram Babu, and Anand Kumar sitting near Nali at the Mends (boundary line) of the Chari field at about 5 P. M. and the aforesaid persons enquired from them about Raj Kumar Pradhan, and after replying to their query, both of them went to Anayee and there he saw Shambhu, Raj Kumar Pradhan (deceased), Rajjan and Shiv Shyam at the door of Shambhu, and on the next date he came to know that Raj Kumar had been murdered. 9. Daya Shanker has been examined as P. W. 3 He stated that on the date of incident, at about 9 A. M. he was going to water his field and when he reached near tube-well of Ram Ratan, he heard talks of some persons from a room near the tube well and then he started to listen to their talks and saw that Ram Ratan, Kailash Narain, Ram Babu, Shyam Babu, Radha Raman, Shesh Narain, Kripa Shanker, Anand Kumar, Sadashiv and Ram Chand were sitting inside the room and Shiv Shyam, Bare alias Shravan Kumar, Mool Chand, and Bable were also present there and they were having conversation. Kripa Shanker stated that they cannot win Bhagauti, because Raj Kumar Pradhan was fully supporting Bhagauti and in the cases filed against Bhagauti Raj Kumar had got Bhagauti bailed out and so first of all Raj Kumar should be removed from the way. Radha Raman then stated that revenge should be taken from Raj Kumar. Shiv Shyam stated that they should make arrangement for money and he would himself finish Raj Kumar. Then Ram Ratan and Kailash Narain stated that he should not bother for money. Radha Raman then stated that revenge should be taken from Raj Kumar. Shiv Shyam stated that they should make arrangement for money and he would himself finish Raj Kumar. Then Ram Ratan and Kailash Narain stated that he should not bother for money. Thereafter Ram Babu stated that he had a revolver and Anand Kumar had a gun and so they will murder him and the remaining persons should collect around Raj Kumar and apprehend him. Thereafter Daya Shanker left that place and at about 8 to 9 P. M. He heard a noise and then he came out and saw that there was a noise infront of the house of Ram Ratan Pradhan. Ram Ratan and Kripa Shanker were stating that Raj Kumar had been murdered. Then he saw that Shiv Shyam, Mool Chand, Bare alias Shravan Kumar, Kailash Narain, Ram Babu, Shyam Babu, Ram Ratan, Radha Raman. Shesh Narain, Kripa Shanker, Anand Kumar and Sadashiv were also sitting there. Ram Ratan and Kripa Shanker stated that they had murdered Nahar of Nadiha and thereafter Ram Ratan and Shiv Shyam fired in air. He further stated that a day prior to the incident in question Shiv Shyam, Mool Chand, Bare alias Shravan Kumar, Bable, Ram Babu, Shyam Babu, Anand Kumar and Sadashiv had also come in the field of Jawahar Lal and they had done one fire and then Daya Shanker. Cyan Prakash, Prem Shanker and Adesh Kumar also reached there and they challenged the accused persons. Then Shiv Shyam did a fire from his fire arm and thereafter the accused went away stating that the offence under section 302 I. P. C. shall be committed. He further stated that he had seen the accused in the room of tube well through margin in the door leaves. 10. Dr. B. R. Singh was examined as P. W. 4. He had performed post-mortem examination of the dead body of Raj Kumar. He has proved the post-mortem re-l port Ex. Ka 1. He stated that death of Raj Kumar might have taken place on 2. 9. 1979t and that injuries No. 1 to 8 caused to Ra Kumar were sufficient to cause his death. 11. Chandra Mohan was examined as P. W. 5. He stated that at about 5. He has proved the post-mortem re-l port Ex. Ka 1. He stated that death of Raj Kumar might have taken place on 2. 9. 1979t and that injuries No. 1 to 8 caused to Ra Kumar were sufficient to cause his death. 11. Chandra Mohan was examined as P. W. 5. He stated that at about 5. 30 P. M. h was easing himself at the field of Kesarj and at that time he saw Shiv Shyam, Bare] Bable, Mool Chand. Mauni, Anand Kumar Sadashiv and Ram Babu following Raj Kumar. Thereafter he heard the sound of a fire. Then Raj Kumar tried to run away, but the aforesaid persons chased him and they fell down Raj Kumar and did four fires upon him. Thereafter Ram Babu, Anand Kumar, Sadashiv went towards village Sargavan; Shiv Shyam, Bable, Moot Chand and Mauni ran towards north. He further stated that Ram Babu had revolver, Anand Kumar had gun, Sadashiv had Tabbal, Shiv Shyam had revolver, Mauni had fan belt and Bable and Mool Chand had Ballam and Pharsa with them. He further statec that thereafter he went to the spot and saw that Raj Kumar was lying dead. He statec that he did not see the injuries of Raj Ku mar. He further stated that he did not know as to how Raj Kumar died and that he had not seen any shot being fired at Raj Kumar nor he saw any one giving blow of any other weapon to Raj Kumar. He was declared hostile by the prosecution. 12. Puttu Lal constable was examined by the prosecution as P. W. 6. He stated that on the date of incident he and Tilak Singh constable had gone to village Anayee and had visited the house of Babbu Trivedi and had seen Raj Kumar, Shambhu Pradhan and Rajjan at that place. He further stated that he stayed there as his bicycle had some trouble and after leaving it at that place he 1 took the bicycle of Raj Kumar Pradhan and I went to Jaraila Purwa and returned back to I that place at 3 P. M. and went to the house I of "babu Trivedi. Shambhu and Raj Kumar | were sitting there. He handed over cycle to Raj Kumar to him and took his own cycle and then Raj Kumar Pradhan accompanied him for a furlong. Shambhu and Raj Kumar | were sitting there. He handed over cycle to Raj Kumar to him and took his own cycle and then Raj Kumar Pradhan accompanied him for a furlong. He further stated that Raj Kumar was talking to Shambhu at that time and Raj Kumar asked him to go stating that he would himself return back to his own house. He further stated that on 3. 9. 1979 he had taken dead body of Raj Kumar to mortuary. 13. The prosecution examined Shahbanurrahman, Head Moharrir, as P. W. 7. He stated that on 2. 9. 1979 he was posted as Head Moharrir at police station Kakwan. On the aforesaid date at about 11. 30 P. M. Bhajan Lal had come to the police station and had lodged a F. I. R. He prepared chik report on the basis of that F. I. R. , which is Ex. ka 2. He also proved the G. D. entry, Ex. Ka 3, regarding registration of the case. He further stated that on 1. 2. 1980 Prem Shanker had lodged a report against Anand Kumar and Sadashiv (accused) under sections 504/506 I. P. C. He has proved that report as Ex. Ka 4. Its G. D. entry was also proved by him as Ex. Ka 5. He also registered NCR No. 68/1980 on the report of Daya Shanker against accused Radha Raman etc. under sections 504/506 I. P. C. , which is Ex. Ka 6. He also proved the F. I. R. lodged by Chhotey Lal against Shiv Kumar and Kripal under sections 506 and 352 I. P. C. He proved this F. I. R. as Ex. Ka-7 and its endorsement in the G. D. Ex. Ka-8. He further stated that the F. I. R. lodged by Daya Shanker was also entered in the G. D. and that G. D. entry has been proved as Ex. Ka-9. He further stated that on 29. 11. 1980 Pradeep Kumar had lodged a report against Radha Raman under sections 364 and 323 I. P. C. , which is Ex. Ka-10 and its entry in the G. D. is Ex. Ka-11. He also stated that on 30. 10. 1980 Madan Lal lodged a report against accused Shambhu etc. which was under sections 504, 506 and 352 I. P. C. It is Ex. Ka-12 and its entry in the G. D. has been proved as Ex. Ka-10 and its entry in the G. D. is Ex. Ka-11. He also stated that on 30. 10. 1980 Madan Lal lodged a report against accused Shambhu etc. which was under sections 504, 506 and 352 I. P. C. It is Ex. Ka-12 and its entry in the G. D. has been proved as Ex. Ka-13. It may be mentioned that all these first information reports are in respect of so called threats given by the accused persons to the witnesses and so it was prayed therein that action should be taken against the accused persons for those threats. 14. The prosecution has also examined Gautam as P. W. 8. He has stated that on the date of incident he was coming from his father-in-laws house to his own village via Sargawan and he saw Jagat harvesting fodder towards north of the way. Jagat called him and offered Biri to him. Hence, he was smoking Biri along with Jagat and at about 5. 30 to 6 P. M. he heard sound of fire and then he saw that Pradhan of village Nadiha (Raj Kumar) was running away and Mool Chand, Bable, Bare, Shiv Shyam, Mauni, Ram Babu, Anand Kumar, and Sadashiv were chasing him. All these accused persons collected around Raj Kumar and when Raj Kumar reached the maize field of Vishram, Maunia threw fan belt in the neck of Raj Kumar and fell him on the ground. Then Ram Babu and Shiv Shyam did four fires upon Raj Kumar and Bable, Sadashiv and Anand Kumar gave blows to him from Pharsa and Tabbal. Consequently, Raj Kumar died. Thereafter Ram Babu, Sadashiv and Anand Kumar ran away towards south and Shiv Shyam, Maunia, Bable, Bare and Mool Chand ran towards north. He further stated that Ram Babu and Shiv Shyam had pistols with them, Bare & Mool Chand had guns with them, Bable had Pharsa, Maunia had fan belt, Sadashiv had Tabbal and Anand Kumar had a gun with him. 15. Bhajan Lal was examined as P. W. 9. He is informant of the case. He has stated that he had two brothers namely, Raghubanshi and Raj Kumar. Raj Kumar was Pradhan of the village. He further stated that he did not know Rain Babu. Marriage of his brother had taken place in the house of Narbada Prasad of village Garhewa. Bhajan Lal was examined as P. W. 9. He is informant of the case. He has stated that he had two brothers namely, Raghubanshi and Raj Kumar. Raj Kumar was Pradhan of the village. He further stated that he did not know Rain Babu. Marriage of his brother had taken place in the house of Narbada Prasad of village Garhewa. Adesh Kumar was his Sala, and he was accused in the case of Marpit of Radha Raman. Raj Kumar was doing Pairvi of Adesh Kumar. Dinesh Kumar was also accused in this case and Raj Kumar was doing his Pairvi also. There was partibandi between Adesh Kumar and Radha Raman. Ram Babu & Shyam Babu (who are brothers) Anand Kumar, Kripa Shanker (both brothers), Sadashiv, Shiv Shyam, Bable, Mool Chand, Bare alias Shravan Kumar, Ram Ratan and Shambhu were in the party of Radha raman. Shravan Kumar was servant of Mauni Kahar at that time. He has further stated that one day prior to the incident Umashanker and Cyan Prakash of village Garhewa had come to his house at about 8. 30 P. M. and they complained to Raj Kumar that Jawahar Lal was harvesting grass from his field and Shiv Shyam and Bable had fired at Jawahar Lal. Upon inquiry of Raj Kumar they had told him that Anand Kumar, Sadashiv, Ram Babu, Shyam Babu. Barkau and Mool Chand were also present there and they were stating that offence under section 302 I. P. C. shall be committed next morning. Raj Kumar advised them that they should go to their house and that he would come on the next day and he will ask Shambhu to prohibit his brother Shiv Shyam from doing misdeeds. Then Cyan Prakash and Umashanker returned back to their house, and on the next morning Raj Kumar and Babu went to village Anayee and thereafter Raj Kumar did not come back and in the night he received information from Ram Saran Bahelia that murder of Raj Kumar had been committed and his dead body was lying in the field of Mohan. Then he went to that place and saw the dead body of Raj Kumar. Thereafter he went to the police station and lodged the report, which is Ext. Ka-14. 16. Shambhu Dayal was examined as P. W. 10. Then he went to that place and saw the dead body of Raj Kumar. Thereafter he went to the police station and lodged the report, which is Ext. Ka-14. 16. Shambhu Dayal was examined as P. W. 10. He has stated that on the date of incident he was going to village Anayee from his village Jarela Purwa to meet Puse, brother-in-law of his brother as he was ill. When he reached near the maize field of Kesari, he saw Raj Kumar Pradhan coming from Anayee on a bicycle and then there was a fire. Consequently Raj Kumar fell down and then eight persons came out from the Chari field. Their names were Anand Kumar, Sadashiv, Ram Babu, Shiv Shyam, Bare, Bable, Mauni and Mool Chand. They rushed towards Raj Kumar. Anand Kumar had a gun, Sadashiv had Tabbal, Ram Babu and Shiv Shyam had revolvers with them, Bare had a ballam, Bable had Pharsa, Mauni had belt and Mool Chand had a ballam. Anand Kumar fired at Raj Kumar. Raj Kumar tried to run away but all the accused persons collected around him. Then Mauni threw fan belt at the neck of Raj Kumar and pulled him. Consequently, Raj Kumar fell down. Then Sadashiv and Bable gave Tabbal and Pharsa blows to Raj Kumar, Ram Babu and Shiv Shyam fired at Raj Kumar from their fire arms and thereafter the accused went away. He further stated that after the incident he did not go to village Anayee due to fear. He further stated that he had reached near Raj Kumar and had seen that he had died. He further stated that then he returned back to his own house. 17. Radhey Shyam has been examined as P. W. 11 by the prosecution. He has stated that on the date of incident he was watering his field since morning and at about 12 noon he saw Mauni Kahar going towards village Garhewa and then at about 4 to 4. 30 P. M. he saw Shyam Babu, Ram Babu. Anand Kumar, Sadashiv, Mool Chand, Bare, Shiv Shyam, Bable and Mauni Kahar going towards Anayee. Thereafter at about 6. 30 P. M. he saw Shyam Babu, Ram Babu. Anand Kumar, Sadashiv, Mool Chand, Bare, Shiv Shyam, Bable and Mauni Kahar going towards Anayee. Thereafter at about 6. 30 P. M. he saw Ram Babu, Sadashiv, Anand Kumar coming from Anayee and going towards Garhewa and after some time he came to know that Raj Kumar had been murdered and then he went to that place and saw dead body of Raj Kumar. 18. Umashanker son of Bhagauti Prasad, was examined as P. W. 12. He has stated that one day prior to the incident at about 5 P. M. Jawahar Lal was harvesting grass in his field of maize and at that time Shiv Shyam of village Anayee had done two fires at Jawahar Lal but Jawahar Lal did not receive any fire arm injury. He stated that Shiv Shyam was accompanied by Bare, Bable, Mool Chand, Anand Kumar, Sadashiv, Ram Babu and Shyam Babu. At that time he had said to Shiv Shyam that it was not proper to fire in that manner. Then Anand Kumar and Shiv Shyam stated that within a day or two offence under section 302 I. P. C. shall be committed. He further stated that on that very day at about 8 P. M. he and Cyan Prakash went to the village of Raj Kumar Pradhan. Raj Kumar was at his house. They narrated the above incident to Raj Kumar. Then Raj Kumar stated that he would come to village Anayee on the next day and ask Shiv Shyams brother Shambhu and Bachchan, father of Bare, that they should not repeat such thing in future, and if they do not pay heed to it, he would lodge a report against them at the police station. He further stated that thereafter he and Cyan, Prakash went back to their house and on account of fear of the accused, they did not go to police station. 19. Ram Swamp Singh, Sub Inspector was examined by the prosecution as P. W. 13. He had investigated the case. He has stated that he had recorded the statement of Bhajan Lal on the date of registration of the F. I. R. at the police station. Thereafter he visited the spot and prepared site plan, Ext. Ka-15. 19. Ram Swamp Singh, Sub Inspector was examined by the prosecution as P. W. 13. He had investigated the case. He has stated that he had recorded the statement of Bhajan Lal on the date of registration of the F. I. R. at the police station. Thereafter he visited the spot and prepared site plan, Ext. Ka-15. He has further stated that two cycles and a pair of Chappals were found at the place of incident and Biri was also found there and a memo of recovery of these items was prepared by him, which is Ex. Ka-16. He further stated that one match box and six match sticks, cycle, two empty cartridges, one pair of rubber shoes of the deceased were recovered from the spot and their memo was also prepared, which is Ext. Ka-17. He also took plain and blood stained earth from the place of incident and sealed it in separate containers and prepared its memo Ext. Ka-18. He also prepared inquest report of the dead body on the spot and sealed the blood stained clothes of the deceased and thereafter sent the dead body for post-mortem examination. He proved the Panchayat-nama Ext. Ka-19, challan of the dead body Ext. Ka-20, photo of the dead body, Ex. Ka-21, letter to Chief Medical Officer Ext. Ka-22 and specimen of seal, Ex. Ka-23, used for sealing the dead body. He further stated that thereafter he recorded the statements of Rajjan, Shiv Prakash, Rajendra. Chhotey Lal, Chandra Mohan, and thereafter he started to make efforts for arrest of the accused persons. He further stated that statements of Daya Shanker and Cyan Prakash were also recorded by him. On 4. 9. 1979 statements of Saroj Kumari, Madan Lal, and Radiiey Shyam were recoded. Thereafter on 7. 9. 1979 statements of witnesses Uma Shanker, Jawahar Lal and Ram Sanehi were recorded. Thereafter statements of Constable Tilak Singh and Puttu Lal were recorded by him on 29. 9. 1979. On 7. 10. 1979 statements of Gautam, Ram Saran, Mathura, Rameshwar, Bihari, Ghasitey, Satya Narain, Gopal, Nawab Singh, Shambhu Lal, Sattan and Babu were recorded. He recorded the statement of Ashok Kumar on 10,10. 1979. Thereafter he obtained order from the Court for issuing processes under sections 82 and 83 Cr. P. C, against the accused, which is Ex. Ka-24. On 7. 10. 1979 statements of Gautam, Ram Saran, Mathura, Rameshwar, Bihari, Ghasitey, Satya Narain, Gopal, Nawab Singh, Shambhu Lal, Sattan and Babu were recorded. He recorded the statement of Ashok Kumar on 10,10. 1979. Thereafter he obtained order from the Court for issuing processes under sections 82 and 83 Cr. P. C, against the accused, which is Ex. Ka-24. Thereafter household goods of accused Chandra Kishore alias Bable, Ram Nath alias Mauni, Shravan Kumar alias Bare, Mool Chand, Shiv Shyam, Sadashiv, Anand Kumar and Ram Babu were attached by him. He has proved the memo of attachment of the house-hold goods of these persons, which are Exts. Ka-25 to Exts. Ka-32. He further stated that thereafter the above named accused persons appeared before the Court. Accused Kripa Shanker was, however, arrested by the police of police station Bilhaur. He further stated that the clothes and shoes of the deceased, and blood stained and ordinary earth were sent for chemical examination and after completion of the investigation he submitted charge-sheet against the accused Ram Ratan, Kailash Narain, Shesh Narain, Kripa Shanker, Ram Nath alias Mauni, Shiv Shyam, Chandra Kishore alias Bable, Shravan Kumar alias Bare, Mool Chand, Radha Raman. Ram Babu, Anand Kumar and Sadashiv on 10. 10. 1979 and thereafter another charge-sheet was submitted by him against Shambhu Dayal and Shyam Babu on 31. 12. 1979, which are Exts. Ka-33. He also identified the packets of blood stained and ordinary earth, Exts. 4 and 5, shoes Ext. 6, match box recovered on the spot Ext. 7, two bullets recovered on the spot Exts. 8 and 9, Biri recovered on the spot Ext. 10. two cycles and chappal recovered on the spot were identified as Exts. 2, 3 and 1 respectively. Since two pages of the charge-sheet were misplaced from the file of the case, he filed carbon copies of these two pages of the charge-sheet and proved the same as Ext. Ka-34. 20. The prosecution also filed affidavit of Sri Puttu Lal constable who had taken dead body of Raj Kumar from the place of incident to the mortuary in seated condition. It is Ext. Ka-35. The report of Chemical Examiner is Ext. Ka-36 and of the Serologist Ext. Ka-37. 21. This is the entire prosecution evidence on record. 22. The accused persons in their statements under section 313 Cr. P. C. denied the prosecution allegations against them. It is Ext. Ka-35. The report of Chemical Examiner is Ext. Ka-36 and of the Serologist Ext. Ka-37. 21. This is the entire prosecution evidence on record. 22. The accused persons in their statements under section 313 Cr. P. C. denied the prosecution allegations against them. They stated that they have been falsely implicated in this case and the witnesses were also deposing against them on account of enmity. 23. The accused produced Sita Ram, Lekhpal of village Sargavan as D. W. I. He had brought with him the map of agricultural land, Khasra and Khatauni of village Sargavan. He stated that under orders of the Sub Divisional Magistrate name of Mohan Lal son of Shiv Charan was recorded in respect of plots No. 18/2, 636/1 and 637, and out of these plots, plots No. 636/1 and 637 are situate towards north of the village at a distance of about three furlongs from Abadi and there was no Nali near these fields and there was no field of Vishram adjacent to these fields. There was also no hand pipe near these fields. There was usar land towards south of these fields having length of 1-1/2 furlongs and the aforesaid fields are adjacent to the border of Fatehpur. Mohan Lais field is towards north of the village adjacent to Ranipur. It was at a distance of three furlongs from Sargavan and at a distance of five furlongs from village Anayee. The distance of plots No. 636/1 and 637 is eight furlongs from Anayee and Abadi of Sargavan is towards west of village Anayee. There was a Nali adjacent to the boundary of plot No. 18/3. No fields of Kesari, Chhedi Lal and Vishram are there adjacent to the above fields. There was no land in the name of Vishram Dhanuk in village Sargavan. He has filed extracts of Khasra and Khatauni (Ext. Kha-1) to show that the topography of the place of incident as stated by the prosecution witnesses was wrong. 24. Sri B. P. Gupta, Record Keeper of Police Office, Kanpur was examined as D. W. 2. He stated that the F. I. R. dated 8. 12. 1969 under section 379 I. P. C. and that dated 23. 1. 1973 under sections 509,504,506 and 352 I. P. C. were summoned from his office but these F. I. Rs. had been weeded out. He stated that the F. I. R. dated 8. 12. 1969 under section 379 I. P. C. and that dated 23. 1. 1973 under sections 509,504,506 and 352 I. P. C. were summoned from his office but these F. I. Rs. had been weeded out. He, however, stated that carbon copy of the F. I. R. of case crime No. 137 under section 379; I. P. C. which had been issued to the complainant of that case, was before him and the carbon copy of the other F. I. R. was also before him and he has proved both these carbon copies. 25. Dharam Singh, Lekhpal of village Nadiya Khurd was examined as D. W. 3. He stated that he had brought Khatauni and Khasra of Nadia Khurd with him. He stated that in village Nadiya Khurd there was no field of Shambhu Dayal son of Durjan. 26. Manni Lal Yadav was examined as D. W. 4. He stated that on 2. 9. 1979 he was posted as Tar Babu at Nahar Kothi Kak-wan, He maintained register of supply of water from the canal. He has further stated that on 2. 9. 1979 Takrauli Rajwaha from which water was supplied to the village for irrigation was closed, and it was opened on 3. 9. 1979. 27. Mool Chand was examined as D. W. 5. He was Pradhan of Fattepur. He has stated that whenever supply of water is made to the village from canal some guards are posted to check the supply. He further stated that on 2. 9. 1979 no supply was done from the canal and some persons were posted there to check that none had opened Bandha. He further stated that he had not asked any one to open the Bandha on 2. 9. 1979. 28. Ganga Ram posted in the Record Room (Criminal), Civil Court, Kanpur was examined as D. W. 6. He was summoned to produce the bail application No. 1034 of 1979. He appeared and stated that the bail application had been weeded out. 29. Om Prakash Dixit was examined as D. W. 7. He was clerk in the office of Sri Munna Lal Bhushan, Advocate. He was summoned to produce the bail application No. 1034 of 1979. He appeared and stated that the bail application had been weeded out. 29. Om Prakash Dixit was examined as D. W. 7. He was clerk in the office of Sri Munna Lal Bhushan, Advocate. He has stated that Sri Munna Lal Bhushan had filed the bail application of accused Ram Ratan, Ram Narain and Kripa Shanker in the Court of the Sessions Judge, Kanpur Dehat and since the original application had been weeded out, he was filing carbon copy of that application and other documents as Exts. Kha-2 to Ext. Kha-14 to show that there was enmity between the accused persons and prosecution witnesses. 30. The learned Addl. Sessions Judge after hearing of the case came to the conclusion that the prosecution had failed to prove the charge of conspiracy against all the accused persons but it was successful in proving its case under sections 302/149 I. P. C. and 148 I. P. C. against accused Ram Babu, Anand Kumar alias Chhotey, Sadashiv alias Chhutkauna, Shiv Shyam, Mool Chand, Chandra Kishore alias Bable, Mauni alias Ram Nath and Shravan Kumar alias Bare. He, therefore, acquitted all the accused persons in respect of the charge under section 120-B I. P. C. Accused Ram Ratan, Kailash Narain, Shesh Narain, Radha Raman, Kripa Shanker, Shyam Babu and Shambhu Dayal were acquitted of the charge under section 302/149 I. P. C. also. Accused Radha Raman, Shesh Narain, Ram Ratan. Kailash and Kripa Shanker against whom charge under section 147 I. P. C. was framed were acquitted in respect of this charge also. Accused Ram Babu, Anand Kumar alias Chhotey, Sadashiv alias Chhutkauna, Shiv Shyam, Mool Chand, Chandra Kishore alias Bable, Mauni alias Ram Nath and Shravan Kumar alias Bare were convicted under sections 148 and 302/149 I. P. C. and they were sentenced to life imprisonment under section 302/149 I. P. C. and to two years R. I. under section 148 I. P. C. It was further directed that both the sentences shall run concurrently. 31. Aggrieved with the above judgment and order of conviction under sections 302/149 and 148 I. P. C. the accused (Ram Babu, Anand Kumar, Sadashiv, Chandra Kishore alias Bable, Shravan Kumar alias Bare, Mool Chand, Shiv Shyan and Ram Nath alias Mauni filed this appeal. 32. 31. Aggrieved with the above judgment and order of conviction under sections 302/149 and 148 I. P. C. the accused (Ram Babu, Anand Kumar, Sadashiv, Chandra Kishore alias Bable, Shravan Kumar alias Bare, Mool Chand, Shiv Shyan and Ram Nath alias Mauni filed this appeal. 32. We have heard Sri P. N. Misra, learned Senior Counsel for the appellants and Sri Ram Awadh Misra, learned A. G. A. for the State. 33. It is to be seen that no cross appeal has been filed by the State regarding acquittal of all the accused persons in respect of the charge of conspiracy under section 120-B I. P. C. and in respect of acquittal of Ram Ratan, Kailash Narain, Shesh Narain, Radha Raman, Kripa Shanker Shyam Babu and Shambhu Dayal in respect of the charge under section 302/149 and of Ram Ratan, Kailash Narain, Shesh Narain, Radha Raman and Kripa Shanker 147 I. P. C. 34. The present appeal has been filed by Ram Babu, Anand Kumar, Sadashiv, Chandra Kishore alias Bable, Shravan Kumar alias Bare, Mool Chand, Shiv Shyam and Ram Nath alias Mauni, who have been convicted under sections 148 and 302/149 I. P. C. As such, the only point which is to be considered in this appeal is whether these charges have been proved against the above named accused appellants or not and whether the Trial Court has rightly convicted them for the above offences or not. 35. The Trial Court has referred to the statements of the following witnesses while discussing the evidence in support of the above charges: 1. Statement of Rajjan Lal P. W. 1; 2. Statement of Chandra Mohan P. W. 5; 3. Statement of Gautam P. W. 8; 4. Statement of Shambhu Dayal P. W. 10; 5. Statement of Radhey Shyam P. W. 11. 36. Out of the aforesaid witnesses Gautam P. W. 8 and Shambhu Dayal P. W. 10 are said to be eye-witnesses of the incident of murder of Raj Kumar. Chandra Mohan P. W. 5 was also produced as eyewitness of the incident and he at the inception of his statement stated that on 2. 9. 1979 at about 5. 36. Out of the aforesaid witnesses Gautam P. W. 8 and Shambhu Dayal P. W. 10 are said to be eye-witnesses of the incident of murder of Raj Kumar. Chandra Mohan P. W. 5 was also produced as eyewitness of the incident and he at the inception of his statement stated that on 2. 9. 1979 at about 5. 30 P. M. he was easing himself in the maize field of Kesari and at that time he saw that Shiv Shyam, Bare, Bable, Mool Chand, Mauni, Anand Kumar, Sadashiv and Ram Babu were going on the way leading from village Anayee to village Sar-gavan and Raj Kumar was going ahead of all these accused persons. Then a fire took place from a fire arm and Raj Kumar tried to run away, but the above named accused persons chased him and they fell Raj Kumar in the field of Vishram and did for fires upon Raj Kumar. Thereafter Ram Babu, Anand Kumar, and Sadashiv went-towards village Sargavan; and Shiv Shyanv Bable, Bare, Mool Chand and Mauni ran towards north. He further stated that Rafn Babu had revolver, Anand Kumar had gun, Sadashiv had Tabbal, Shiv Shyam had revolver, Mauni had fan belt and Bable and Mool Chand had Ballam and Pharsa with them. He further stated that thereafter he went to the spot and saw that Raj Kumar was lying dead. He further stated that he did not see the injuries of Raj Kumar. He further stated that he did not know as to how Raj Kumar died and that he had not seen any fire arm and any shot being fired at Raj Kumar nor he saw any one giving blow of any other weapon to Raj Kumar. He was declared hostile by the prosecution. During the course of his cross examination he stated that he did not know the accused persons and he had named the aforesaid accused persons under pressure of the police. His statement does not render any help to the prosecution case and the Trial Court has also not placed any reliance upon this statement. 37. Now we take up the statements of Gautam P. W. 8 and Shambhu Dayal P. W. 10. Gautam P. W. 8 has stated that on the date of incident at about 5. His statement does not render any help to the prosecution case and the Trial Court has also not placed any reliance upon this statement. 37. Now we take up the statements of Gautam P. W. 8 and Shambhu Dayal P. W. 10. Gautam P. W. 8 has stated that on the date of incident at about 5. 30 to 6 P. M. he was going from his village Jalela Purwa to his father-in-laws house via Anayee and near village Sargavan he saw that Jagat resident of his own village was harvesting fodder towards north of the way and Jagat called him and offered Biri to him and then he started smoking Biri and then all of a sudden he heard sound of fire and then he got up and saw that Pradhan of village Nadiha (Raj Kumar) was running away and Mool Chand, Bable. Bare. Shiv Shyam, Maunia, Ram Babu, Anand Kumar, and Sadashiv were chasing him. All these accused persons collected around Raj Kumar. Raj Kumar reached maize field of Vishram. At that time Maunia threw fan belt in the neck of Raj Kumar and fell him on the ground. Then Ram Babu and Shiv Shyam did four fires upon Raj Kumar and Bable, Sadashiv and Anand Kumar gave blows from rharsa and Tabbal. Consequently, Raj Kumar died. Thereafter Ram Babu, Sadashiv and Anand Kumar ran away towards south and Shiv Shyam, Maunia, Bable, Bare and Mool Chand ran towards north. He further stated that Ram Babu and Shiv Shyam had pistols with them. Bare and Mool Chand had guns, Bable had Pharsa, Maunia had fan belt, Sadashiv had Tabbal and Anand Kumar had a gun with him. 38. Shambhu Dayal P. W. 10 has stated in his statement that on the date of incident at about quarter to 6 P. M. he was going to village Anayee from his village Jarela Purwa to see Fuse, brother-in-law of his brother because he was ill. He further stated that when he reached near the maize field of Kesari he saw Raj Kumar Pradhan coming from Anayee on a bicycle and then a fire was done upon him. Consequently Raj Kumar got dis-balanced and his cycle fell down and then eight persons came out from the Chari field. Their names were Anand Kumar, Sadashiv, Ram Babu, Shiv Shyam. Bare, Bable, Mauni and Mool Chand. They rushed towards Raj Kumar. Consequently Raj Kumar got dis-balanced and his cycle fell down and then eight persons came out from the Chari field. Their names were Anand Kumar, Sadashiv, Ram Babu, Shiv Shyam. Bare, Bable, Mauni and Mool Chand. They rushed towards Raj Kumar. Anand Kumar had a gun, Sadashiv had Tabbai, Ram Babu and Shiv Shyam had revolvers with them. Bare had a ballam, Bable had Pharsa, Mauni had fan belt and Mool Chand had a ballam. Anand Kumar fired at Raj Kumar. Raj Kumar tried to run away but all the accused persons collected around him. Then Mauni threw fan belt at the neck of Raj Kumar and pulled him. Consequently, Raj Kumar fell down. Then Sadashiv and Bable gave Tabbal and Pharsa blows to Raj Kumar, Ram Babu and Shiv Shyam fired at Raj Kumar from their fire arms and thereafter accused went away. He further stated that after the incident he did not go to village Anayee due to fear but he reached near Raj Kumar and saw that he had died. He stayed for 2 to 3 minutes near the dead body of Raj Kumar and by that time Chhotey Lal and Chandra Mohan also reached there. They said to him that they had identified the accused persons. 39. The noteworthy aspect of this case is that according to the statements of the aforesaid witnesses, they had seen all the above named eight accused persons committing murder of Raj Kumar. It is also noteworthy that Raj Kumar was Pradhan of the village and was an influential person and his murder was committed between 5. 30 to 6 P. M. on a public way but neither of the aforesaid two so called eye-witnesses went to his family members to tell that murder of Raj Kumar had been committed by the above named accused persons and the F. l. R. in respect o1 murder of Raj Kumar was lodged at the police station at 11. 30 P. M. by his brother Bhajan Lal on the basis of the information given by Ram Sa-ran Baheiia at 8. 30 P. M. that dead body of Raj Kumar was lying in the maize field of Mohan Lal Dhanuk. 30 P. M. by his brother Bhajan Lal on the basis of the information given by Ram Sa-ran Baheiia at 8. 30 P. M. that dead body of Raj Kumar was lying in the maize field of Mohan Lal Dhanuk. Shambhbu Dayal P. W. 10 and Gautam P. W. 8 have stated that on account of fear of the accused persons they did not tell any one that they had seen the above named accused persons committing murder of Raj Kumar and they disclosed it for the first time before the Investigating Officer on 7. 10. 1979, i. e. after lapse of more than a month from the incident. 40. The learned Counsel for the appellants challenged their testimony on two counts. He contended that both of them are chance witnesses and so their testimony requires close caution and scrutiny. In support of this contention he cited before us a ruling of the Honble Apex Court in balwl Singh v. State of Haryana, AIR 1976 SC 2032 . in which the same view has been taken. 41. His second contention was that disclosure of the names of the accused persons after such a long gap of more than a month creates serious doubts regarding genuineness of their versions. In support of this contention he cited before us a ruling of the Honble Supreme Court in The State of Bihar v. Kapil Singh. 2. AIR 1969 SC 53 . In this case a child witness had not disclosed the names of accused persons at the earliest and so it was held by the Honble Apex Court that her testimony was unreliable and so the appeal was allowed and the accused were acquitted. Similarly in the case state of Orissa v. Mr. Brahmananda Nanda, AIR 1976 SC 2488 . the eye-witness had not disclosed the names of assailants for one and half day and so his testimony was held to be incredible and the accused were acquitted. The learned Counsel for the appellants pointed out that in the present case there has been delay of more than a month in disclosing the names of the accused. 42. Learned Counsel for the appellants also cited before us the following rulings of the Honble Apex Court in which the same view has been taken: 1. gambhirv. State of Maharashtra, 1982 SCC (Cri) 431. 2. 42. Learned Counsel for the appellants also cited before us the following rulings of the Honble Apex Court in which the same view has been taken: 1. gambhirv. State of Maharashtra, 1982 SCC (Cri) 431. 2. Snrindcr Singh v. State of Punjab, 1989 (26) ACC 382 (SC ). 3. peddircddy Subbareddi and others v. State of Andhra Pradesh AIR 1091 SCI 356. 4. Rambilas and others v. State of M. P. 1997 (35) ACC 841 (SC ). 43. It was submitted by the learned Counsel for the appellants that in view of the law laid down in the above rulings the testimony of Gautam P. W. 8 and Shambhu Dayal P. W. 10 should be held to be unreliable and no reliance should be placed upon them. We agree with this contention. 44. Now we take up the testimony of P. W. I Rajjan Lal. He has stated that on the date of incident he was accompanying Raj Kumar at about 6. 30 P. M. and thereafter he and Shambhu Pradhan proceeded towards Panta, and Raj Kumar proceeded on a cycle towards his own house and on reaching Panta they heard sound of fire, then they moved back and the witness Shambhu Pradhan said that it appears that Raj Kumar had been murdered and then they heard the cries bachao - Bachao. Then they and some other persons proceeded towards that direction and he saw that Ram Babu, Chhotey, and Chhotkauna were running towards Garhewa. Ram Babu had a revolver in his hand, Chhotey had a small gun with him and Chhotkauna had Sabbal with him. He asked them as to why they were running away and then they pointed revolver towards him asking him to look his own work. He further saw that Shiv Shyam, Mool Chand, Shravan Kumar alias Bable, Chandra Kishore and Mauji were running towards north. Shiv Shyam had a revolver in his hand. Mauji had a belt of tractor in his hand, Mool Chand and Shravan Kumar had spears in their hands and Bable had a Pharsa in his hand. He further stated that it was quarter to 7 at that time, then he reached that place where the dead body of Raj Kumar was lying. Mauji had a belt of tractor in his hand, Mool Chand and Shravan Kumar had spears in their hands and Bable had a Pharsa in his hand. He further stated that it was quarter to 7 at that time, then he reached that place where the dead body of Raj Kumar was lying. This witness has stated in his cross-examination that he was detained at the police station for six days in connection with this murder and he had narrated this incident before the Investigating Officer. It was suggested to him that he had given this statement under pressure of the police, he denied this allegation. He has stated that he was released from the police station when Ram Ratan etc. had been sent to jail. It is to be seen that according to the statement of this witness the accused were seen running away from the spot after murder of Raj Kumar and this is a circumstance, which, if believed, connects the accused with the crime. He has further stated in his cross-examination that he had again visited the spot at-about 8 to quarter past 8 in the night on hearing that residents of village Nadiha had reached the place of incident and then on reaching that place he saw that 100 to 150 people including gents and ladies were present there and the ladies were weeping near the dead body of Raj Kumar and Raj Kumars brother Bhajan Lal was also present there. He, however, stated that he had not talked to Bhajan Lal at that time, though he was acquainted with Bhajan Lal and he did not give to Bhajan Lal any information of the incident which he had seen. Thus, his above statement that he saw the accused persons running away having arms in their hands after murder of Raj Kumar from that place again appears to be improbable because if he had actually seen the accused going away from the place of incident after the occurrence, he must have narrated this fact before Bhajan Lal and then this fact must have found place in the F. I. R. lodged by Bhajan Lal at 11. 30 P. M. at the police station. 45. 30 P. M. at the police station. 45. So far as the statement of P. W. 11 Radhey Shyam is concerned, he has simply stated that on the date of incident at about 12 noon he had seen accused Mauni Kahar going towards village Garhewa and thereafter at about 4 to 4. 30 P. M. he saw Shyam Fabu, Ram Babu, Anand Kumar, Sadashiv, Mool Chand, Bare, Shiv Shyam, Bable and Mauni Kahar going back towards village Anayee and then at about 6. 30 P. M. he again saw Ram Babu, Sadashiv and Anand Kumar going from Anayee to Garhewa and then he came to know that Raj Kumar had been murdered. His above statement does not render any help to the prosecution case. He has no where alleged in his statement that the above named accused persons had any arm with them and simply from this fact that he had seen the said accused persons going in one direction or the other cannot lead us to a conclusion that they had participated in the incident of murder. 46. The position in this way is that the prosecution has miserably failed to prove its charges against the accused appellants in respect of murder of Raj Kumar and the learned Judge of the Trial Court did not properly appreciate the evidence and erred in convicting the accused appellants. The appeal, therefore, deserves to be allowed and the judgment and order passed by the learned Addl. Sessions Judge, Kanpur in S. T. No. 328 of 1979 and S. T. No. 298 of 1980 convicting the accused appellants deserve to be set aside and the accused appellants deserve to be acquitted of the charges under sections 302/149 and 148 I. P. C. 47. The appeal is allowed and the judgment and order dated 29. 6. 1981 passed by then Xth Addl. Sessions Judge, Kanpur in S. T. No. 328 of 1979 and S. T. No. 298 of 1980 are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties discharged. They need not surrender. Let a copy of this judgment be certified to the Trial Court for information and execution. .