Ajai Lamba,J. Six appellants have carried this appeal against judgement of conviction dated 8.7.1993 and order of sentence dated 9.7.1993 passed by Ist Additional Sessions Judge, Gonda in Sessions Trial No.259 of 1985. The appellants have been convicted and sentenced as under :- (i). Amar Nath has been convicted for commission of offence under Section 302 I.P.C. and has been sentenced to undergo Life Imprisonment and pay fine Rs.2000/-; under Section 148 and Section 324 I.P.C. to undergo one year' rigorous imprisonment for commission of each of the said offences. (ii). Jwala and Trijugi, appellants, have been convicted for commission of offence under Section 148 I.P.C. and sentenced to undergo one year's rigorous Imprisonment and for commission of offence under Section 302, read with Section 149 I.P.C. to undergo life imprisonment and Rs.2000/- as fine. The said appellants have been convicted for commission of offence under Section 324, read with Section 149 I.P.C. and have been sentenced to undergo one year's rigorous imprisonment. (iii). Likewise, Nar Singh, Sheo Dayal and Jagdamba have been sentenced to undergo imprisonment for commission of offence under Section 147 I.P.C. for one year each and under Section 302, read with Section 149 I.P.C. to undergo imprisonment for life and fine Rs.2000/-. The said appellants have also been convicted for for commission of offence under Section 324, read with Section 149 I.P.C. and have been sentenced to undergo one year rigorous imprisonment. In case the fine is not paid, the appellants have been directed to undergo further imprisonment of six months each. 2. Appellant no.2 Trijugi and Appellant No.6 Jagdamba alias Bekaru died during pendency of appeal. Report in regard to death of Trijugi has been confirmed by the Chief Judicial Magistrate, Gonda vide report 2.1.2007. Death of Jagdamba, appellant has also been confirmed by the Chief Judicial Magistrate, Gonda vide report dated 2.1.2007. Consequently, appeal of appellant no.2, Trijugi, and appellant no.6, Jagdamba alias Bekaru, is hereby disposed of as having abated. 3. P.W.-1 Onkar Nath reported the crime in Police Station Dehat, Gonda while making a statement to the effect that his uncle had been murdered about three years back by Amar Nath, son of Dwarika (appellant no.1) etc. The accused belong to the same village and are from the same family. On account of the murder, the relations are strained between the two parties. The accused belong to the same village and are from the same family. On account of the murder, the relations are strained between the two parties. On 30.6.1985, at about 4.00 p.m. in the grove of Kanhaiya, complainant Onkar Nath(P.W.-1), Sahdev son of Gopi Nath, Shiv Kumar son of Manbodh, Raj Dutt son of Ram Asrey were loading wood on a truck. The wood belonged to Sahdev. 4. In the meantime, Amar Nath, son of Dwarika armed with a gun, Triyugi son of Ram Rang armed with farsa, Jwala, son of Bhawani armed with Bhala, Nar Singh son of Ram Rang and Sheo Dayal son of Daulat armed with lathi while using abusive language came on spot where the wood was being loaded. Above mentioned four accused exhorted Amar Nath that today let us finish/kill Asroni. The entire issue would be solved. On so doing, Amar Nath, son of Dwarika fired with his gun and injured Asroni. Asroni ran towards east. In the meantime, gun was fired again upon which Shiv Kumar son of Manbodh also received injuries. Asroni died where he had fallen. Dead body is lying on the spot. The statement be recorded and appropriate action be taken. 5. Necessary facts required to be considered are that allegedly an incident took place on 30.6.1985 at 4 p.m. in Mango Grove of Kanhaiya, approximately one kilometre away from Village Harakhapur resulting in death of Asroni on account of homicidal injuries. Crime was registered on the statement of Onkar Nath, son of Chandra Shekhar, an eye witness and cousin brother of the deceased Asroni(aged about 25 years), son of Hari Datt Misra R/o Village Harakhapur, Police Station Kotwali Dehat, Gonda, at No.171 on 30.6.1985 at 7.45 p.m., which has been exhibited as Exh.Ka.4 in Police Station Kotwali Dehat, Gonda. Distance of the police station from the place of incident is approximately 11 Kilometers. 6. Special report was sent vide G.D. Entry No.33 at 8.45 p.m. the same day, i.e. on 30.6.1985 to the residence of District Magistrate, Gonda through Rajwanshi Pathak S.TNo.330, as has come in the statement of D.W.-3 namely Mohd. Sajid working in police office, Gonda. 7. The relevant evidence required to be noticed for adjudication on the issue is the statement of P.W.-1 Onkar Nath, statement of P.W.-2 Sahdev, and P.W.-3 Raj Dutt, who all are eye witnesses of the incident. 8. Sajid working in police office, Gonda. 7. The relevant evidence required to be noticed for adjudication on the issue is the statement of P.W.-1 Onkar Nath, statement of P.W.-2 Sahdev, and P.W.-3 Raj Dutt, who all are eye witnesses of the incident. 8. Another eye witness namely Shiv Kumar, who was also injured, was not examined by the prosecution, however, was examined as court witness as CW-1. 9. Post Mortem examination was conducted by P.W.-8 Dr. D.A. Khan on 1.7.1985 at 4.00 p.m. Postmortem report has been exhibited as Exh.Ka-17. 10. Dr. P.C. Shukla was examined as PW-4, who radio-logically examined injured C.W.-1, Shiv Kumar. Radiological report of C.W.-1 Shiv Kumar has been exhibited as Exh.Ka-3. 11. The relevant investigation was carried out by P.W.-7, Sub Inspector Sita Ram Arya. 12. Defence examined five witnesses namely D.W.-1 Sadhu, who stated before the court that the tree that was allegedly being cut by the complainant side, had not been sold by him to Sahdev S/o Gopinath. D.W.-2 Krishna Kant and D.W.-3 Mohd. Sajid both have given statements in regard to special report sent to District Magistrate, Gonda. Ghanshyam Tiwari, a constable was examined as D.W.-4 in regard to G.D.Entry Re : special report. Radhika Prasad was examined as D.W.-5 and deposed about selling of tree by his father to Karan. 13(a). Onkar Nath, the complainant was examined as P.W.-1. Gist of the statement given by P.W.-1 Onkar Nath is to the effect that the accused are all related. The inter se relationship had been detailed in the statement. Jagdamba drives tractor of Amar Nath. Asroni (deceased) was the cousin of the complainant(P.W.-1) and was an agriculturist. He (Asroni, deceased) was a strong man and used to protect and help the complainant(P.W.-1). 13(b). The grove of Kanhaiya is located about one kilometre towards west of the village of the witness. The grove belong to Sadhoo and Kedarnath. They are residents of village Harakhapur. To the north of the grove is a passage going from east-west. To the north of this passage, is the land of Amar Nath. The witness has given the location of related fields and a canal. 13(c). Asroni was the cousin of the complainant/P.W.-1 Onkar Nath. Brother of Asroni was accused of killing father of Amar Nath in the year 1971. He was acquitted. On account of acquittal, Amar Nath etc. were inimical towards Asroni. The witness has given the location of related fields and a canal. 13(c). Asroni was the cousin of the complainant/P.W.-1 Onkar Nath. Brother of Asroni was accused of killing father of Amar Nath in the year 1971. He was acquitted. On account of acquittal, Amar Nath etc. were inimical towards Asroni. At that point in time, Asroni would have been quite young. Uncle of the complainant P.W.-1 Onkar Nath was also murdered about four years back by Amar Nath etc. The trial resulted in acquittal because Amar Nath is a moneyed man. On account of acquittal, the accused became bold. 13(d). The accused were more inimical towards Asroni because in the presence of Asroni, they felt helpless. Also there was a dispute in regard to a well located in front of house of Triyugi. A complaint in regard to drawing water from the well and not to use the path had been made by Manbodh against appellants Triyugi, Sheo Dayal and Nar Singh. The complaint was signed by Asroni and Manbodh. Carbon copy of the complaint was produced in court and signatures of Asroni and Manbodh thereon were identified by the witness in court as Exh.Ka-1. 13(e). It has further been clarified that Sahdev is the uncle of P.W.-1 Onkar Nath, complainant(P.W.-1). Sahdev had purchased a tree in the grove of Kanhaiya and got it cut. In the incident at issue, complainant side were loading the wood of Sahdev in the mango grove of Kanhaiya on a truck. Other than P.W.-1 Onkar Nath, complainant, Asroni, Shiv Kumar, Raj Dutt, Sahdev, Ram Bahorey were also there and helping in loading the wood. It was around 4.00 p.m. 13(f). Jagdamba accused was driving the tractor and came from the north side. On the tractor, Amar Nath, Jwala, Nar Singh, Triyugi and Sheo Dayal, appellants were sitting. They got down from the tractor. Amar Nath took out a gun from the bonnet of the tractor. Triyugi was armed with farsa, Jwala with a bhala, Narsingh and Sheo Dayal were armed with lathi. Jagdamba continued to sit on the tractor. 13(g). These four accused (Jwala, Nar Singh, Triyugi and Sheo Dayal) exhorted Amar Nath saying that today is a good chance to kill Asroni. The accused ran towards the complainant etc. When the complainant and others ran, Amar Nath fired from the back which hit Asroni and Shiv Kumar. Thereafter, Asroni ran towards south. 13(g). These four accused (Jwala, Nar Singh, Triyugi and Sheo Dayal) exhorted Amar Nath saying that today is a good chance to kill Asroni. The accused ran towards the complainant etc. When the complainant and others ran, Amar Nath fired from the back which hit Asroni and Shiv Kumar. Thereafter, Asroni ran towards south. Amar Nath ran and fired while chasing Asroni. Asroni crossed the canal and fell down in the field of Ram Achal and fainted. The accused reached where Asroni was lying and gave two-three more gun shots. Thereafter they said that he is now dead, let us go. Thereafter, the accused went away towards the west. Jagdamba went away on the tractor. 13(h). The complainant(P.W.-1) and others went and found Asroni to be dead. There was blood at the spot. Shiv Kumar also had pellet injuries. After making some people sit near the dead body, the complainant went home. Report was got written through Raj Man, Lekhpal. Whatsoever was dictated, was written. It was read over to the complainant(P.W.-1) whereupon the complainant(P.W.-1) signed. Signature was identified in Court and document has been exhibited as Exh. Ka-2. The report was made in Kotwali Dehat. Alongwith complainant, Shiv Kumar, Swami Nath, Ram Bahorey and Manbodh had gone. Copy of the report was given to the complainant. Shiv Kumar was taken by one police person for medical examination. 13(i). Thereafter the Station House Officer who was present at the police station made inquiries from the P.W.-1 complainant and thereafter the spot was inspected. 13(j). In cross examination of the witness, P.W.-1(Onkar Nath), admits to being an illiterate person. The witness admits that he had been convicted for the murder of Kripa Ram, in which case even uncle of the complainant namely Udai Raj was an accused. Kripa Ram is uncle of the complainant in relationship. Sahdev witness, is real brother of Kripa Ram. Father of Amar Nath, appellant was murdered about 12-14 years back. In the said murder case, Udai Raj, Manbodh and Ram Pher were also the accused. Shiv Kumar is son of that Manbodh. Raj Man is the son of Ram Pher. It is Raj Man, who wrote the report. Ram Pher had been Gram Pradhan of the village for the last eight years. 13(k). In the said murder case, Udai Raj, Manbodh and Ram Pher were also the accused. Shiv Kumar is son of that Manbodh. Raj Man is the son of Ram Pher. It is Raj Man, who wrote the report. Ram Pher had been Gram Pradhan of the village for the last eight years. 13(k). It appears that P.W.-1 Onkar Nath, the complainant was confronted with the fact that in the F.I.R., he had not narrated about the accused coming on a tractor, and Amar Nath taking the gun out of bonnet of the tractor. At that time, the complainant side were about 40 kadam/steps away. The explanation given by the witness is that at that point of time, he was in grief. It has been clarified that the gun was a double barrel gun. 13(l). When the accused exhorted, an apprehension was created in the mind of the complainant side that the accused had come to kill them and therefore the complainant(P.W.-1) and others ran. When the witness had gone some distance, first gun shot was heard. On hearing the gun shot, the witness kept on running. When the first gun shot hit Asroni, the complainant, P.W.-1 was at a distance of 4-5 kassi(approximately 18-23 feet) from him. Shiv Kumar was with Asroni. Shiv Kumar also received injuries. When the complainant(P.W.-1) looked back after hearing the first shot, Asroni and Shiv Kumar were towards the south-east. The complainant(P.W.-1) ran towards the east towards his house. After going some distance, the complainant(P.W.-1) and others stopped. The complainant(P.W.-1) and others saw Asroni had fallen down. Before Asroni fell, two gun shots were fired from the back. After Asroni had fallen down, two-three more shots were fired. 13(m). The fact that Asroni was shot even after he had fallen down, had not been given in the F.I.R. because the complainant(P.W.-1) was in grief at that point in time. In the cross examination, it has further been stated by P.W.-1 that Shiv Kumar got hit by second gun shot/fire. The first shot had hit Asroni. The dead body was dragged and placed in east-west position by the accused. 13(n). The witness has been questioned in cross examination in regard to the persons who were left with the dead body. The complainant, P.W.-1 has explained that in the process from the time of incident till making the report in the police station, 2-1/2-3 hours were consumed. The dead body was dragged and placed in east-west position by the accused. 13(n). The witness has been questioned in cross examination in regard to the persons who were left with the dead body. The complainant, P.W.-1 has explained that in the process from the time of incident till making the report in the police station, 2-1/2-3 hours were consumed. 13(o). It has been stated that P.W.-1 Onkar Nath went on foot with Shiv Kumar for some distance and thereafter boarded a truck carrying sand. They would have walked maximum about 1.5 kilometres before boarding the truck. The witness has further explained that when he reached the place of occurrence at 5.30-6.00 a.m., the next day, the police officer was already present at the spot. Alongwith other persons named in the statement, even Sahdev was present and the site of incident was shown to the police officer. 13(p). The witness was confronted with the fact that in the report made to the police, he had not narrated about dragging of the dead body. These facts were not given because the witness was in grief. The witness has denied the suggestion that on account of tutoring, various facts have been added in the statement in court. 13(q). The witness has further stated that another reason for enmity was the report made by Asroni and Manbodh. The said report had been made five days prior to the incident. In the case of murder of Udai Raj, the accused had been acquitted and therefore were inimical towards the witness (P.W.-1). The witness (Onkar Nath, P.W.-1) has stated that his name or name of Sahdev had not been taken, rather it has been said that enemy is there and kill him. 14(a). Sahdev has been examined as P.W.-2. Sahdev, as per the F.I.R. version, is another eye witness to the incident. 14(b). Statement given by P.W.-2 Sahdev is similar on all material facts to the statement given by P.W.-1, the complainant Onkar Nath. For brevity's sake, the gist of the said statement is not being repeated. Only the additional portion of the statement that is relevant for adjudication is being referred to. 14(c). The statement of P.W.-2 Sahdev is to the effect that he had purchased one mango tree in the grove of Kanhaiya from Sadhoo about one month before the incident. The tree was got cut about 8-10 days before the incident. Only the additional portion of the statement that is relevant for adjudication is being referred to. 14(c). The statement of P.W.-2 Sahdev is to the effect that he had purchased one mango tree in the grove of Kanhaiya from Sadhoo about one month before the incident. The tree was got cut about 8-10 days before the incident. He was getting the wood loaded on a truck. For getting the wood loaded, Raj Dutt, Asroni, Onkar Nath, Shiv Kumar, Ram Bahorey were there. 14(d). P.W.-2 Sahdev has in addition stated that the accused reached near Asroni. The leg of Asroni was dragged to make Asroni lie straight/face up. Thereafter two shots were fired on the chest region of Asroni. The shots were fired from close range. The body was shaken to verify Whether Asroni had died. Thereafter the accused went towards the west. When the complainant side raised a hue and cry, some villagers came. 14(e). The witness Sahdev P.W.-2, has stated that Asroni was a strong person and the complainant side were living under his protection. Asroni was an impediment in the designs of the accused and was removed. 14(f). In cross examination, the witness P.W.-2 has clarified about inter se relationship between the parties. The witness has clarified that the tree had been taken for business purpose. It was a healthy tree. Permission for cutting the tree had not been taken from the forest department. In regard to the cutting of tree, separate proceedings had been initiated. The witness has further given details about hiring of the truck and labour for cutting of the tree. The witness has stated that the persons accompanying him had been asked to load the wood in the truck so as to save labour cost. 14(g). Four days after the incident P.W.-2 Sahdev got himself released on bail in relation to the criminal proceedings initiated on account of cutting of tree. Proceedings were going on at the time of deposition of the witness, in court. 14(h). P.W.-2 Sahdev has further clarified in regard to the assistance given to the Investigator, at the spot by way of pointing the place where from the occurrence had been witnessed. The measurement of various distances, however, had not been conducted in the presence of the witness. At that time, Raj Dutt and Ram Bahorey were also present at the place of incident. 14(i). The measurement of various distances, however, had not been conducted in the presence of the witness. At that time, Raj Dutt and Ram Bahorey were also present at the place of incident. 14(i). In regard to the incident, it has been stated that the persons on the complainant side ran when Asroni received injury. When Asroni ran, all the five accused ran following him(Asroni). 14(j). It appears that this witness was confronted with his previous statement in regard to giving gun shot injuries by Amar Nath, after Asroni had fallen down. It has been clarified by the witness that he was not questioned in that regard therefore this fact was not disclosed. Absence of the fact that Asroni was a bold person and used to protect the complainant side, in the previous statement, was also confronted, to which it was responded that this aspect was not asked by the investigator. 14(k). When the investigator went to the spot, 16-18 pieces of wood were lying at the spot. The wood was handed over to Bhotu Nau. Thereafter some wood had been taken away by thieves and some had been taken by the witness P.W.-2, Sahdev, after taking permission. 14(l). The witness denied the suggestion that the tree had not been purchased; tree had not been cut and no wood was recovered from the spot. A suggestion was given to the witness that the accused had been falsely implicated so as to take revenge of murder of Udai Raj. 15(a). Raj Dutt, another eye witness has been examined as P.W.-3. It has been stated by the witness that he had gone to help Sahdev, on his (Sahdev's) asking, to get the wood loaded, alongwith others, on the asking of Sahdev. The accompanying persons have been named as Onkar, Swami, Sahdev, Sant Kumar and Ram Bahorey. 15(b). The witness has given statement which is similar in effect, in regard to the material facts, as deposed by P.W.-1 Onkar Nath and P.W.-2 Sahdev. The statement is therefore not being referred to in extenso, for brevity's sake. 15(c). The witness has in addition stated that Shiv Kumar injured has been named as Sant Kumar in the earlier part of the examination in Chief. 15(d). The witness has stated that Asroni had fallen down in the field of Ram Achal. The statement is therefore not being referred to in extenso, for brevity's sake. 15(c). The witness has in addition stated that Shiv Kumar injured has been named as Sant Kumar in the earlier part of the examination in Chief. 15(d). The witness has stated that Asroni had fallen down in the field of Ram Achal. The accused went there and straightened his body and gave two gun shot injuries on the chest region. 15(e). In cross examination, P.W.-3 Raj Dutt was asked whether he could run, being lame, to which the witness responded in the affirmative. 15(f). It appears that the witness was confronted with his previous statement that after being injured, 3-4 gun shots were fired. The witness has denied giving the statement to the investigator. The witness has further stated that in his previous statement he had said that after Asroni had fallen down, two more shots had been fired. Why the investigator did not record the statement to this effect, is not known. 16(a). Shiv Kumar, another injured eye witness was examined as Court witness (C.W. No.1). 16(b). The witness has supported the case as deposed by P.W.-1 Onkar Nath, P.W.-2 Sahdev and P.W.-3 Raj Dutt on all material facts and therefore for brevity's sake, a detailed reference to it is not being made. 16(c). The witness has given the facts about receipt of injury. The accused have been named. It has further been stated that he was radio-logically examined. 16(d). In addition, the witness has stated that he did not come to depose earlier because he had been threatened by accused Amar Nath and Triyugi etc. that if he deposed, he would be killed. 16(e). In the cross examination, the witness CW-1 Shiv Kumar has stated that the fact that he had been threatened was disclosed to his father Manbodh and Onkar Nath. An application was also given in the police Station. The witness has been cross examined in detail about the threat and making an application to that effect in the police Station. The witness has further stated that two armed police personnel had brought him to court to enable him to depose. 16(f). In reply to a court question, the witness CW-1 Shiv Kumar has stated that when the accused exhorted and fired, the witnesses were at the distance of 50 kadam/steps. Asroni and the witness Shiv Kumar were injured by this fire. 16(f). In reply to a court question, the witness CW-1 Shiv Kumar has stated that when the accused exhorted and fired, the witnesses were at the distance of 50 kadam/steps. Asroni and the witness Shiv Kumar were injured by this fire. The second fire did not hit the witness Shiv Kumar, CW-1. At the time when the pellets hit him(Shiv Kumar, CW-1), Asroni(deceased) was at the distance of 1-2 hands away from him (Shiv Kumar). 16(g). The witness was confronted with his previous statement in which it has not been recorded that after Asroni had fallen down, he was given injuries by gun shots. The witness responded by saying that he could not recollect whether the said fact was stated before the police or not. The witness stated that he could not recollect that he had told the investigator that after Asroni had fallen down, he had been shot. 16(h). The witness was further particularly confronted with his previous statement wherein it has been stated that accused Amar Nath, Triyugi, Jwala, Nar Singh and Sheo Dayal were following. Amar Nath fired 3-4 times whereupon Asroni fell down. After Asroni had fallen down, he (Asroni) was held with his legs and was dragged to see whether he had died. To this, the witness stated that if it was stated by him, it would be correct. The witness denied the suggestion that after Asroni had fallen down, Amar Nath had not fired. The witness has denied the suggestion that he was not present at the spot and had been introduced as a false witness. The witness denied the suggestion that injuries received by him had been fabricated. The witness has denied the suggestion that for giving false statement, Onkar Nath had given promise to give him 5 bighas of land. The witness denied the suggestion that litigation is going on in regard to property, between the father of the witness Shiv Kumar and sister of Asroni. The witness has admitted that they had old enmity with Manbodh and Amar Nath. 17(a). Dr. D.A. Khan, was examined as P.W.-8. The witness conducted post mortem on the body of Asroni at 4.00 p.m. on 1.7.1985. The post mortem report has been exhibited as Ka.-17. The witness has given statement to the effect that the deceased had seven injuries. The witness has admitted that they had old enmity with Manbodh and Amar Nath. 17(a). Dr. D.A. Khan, was examined as P.W.-8. The witness conducted post mortem on the body of Asroni at 4.00 p.m. on 1.7.1985. The post mortem report has been exhibited as Ka.-17. The witness has given statement to the effect that the deceased had seven injuries. The seat of the injuries have been found on the left side of the face below the ear; on the chest and stomach area, fire arm injury on the left side of the stomach, 14 cms below the nipple. Charring and tattooing were present and gun powder was found in the injuries. Another gun shot injury was found in the stomach on the right side. Intestines were found protruding outside. Charring and tattooing were found on the wounds. In the wound, cardboard wad was found. Injuries were also found on the hand and on the back portion of the body. Projectiles were small and round in shape. On internal examination, the doctor found the left side of lung to be ruptured at three places. Right lung was found to be ruptured at five places. In both the wounds, multiple projectiles were found. The small and large intestines were found ruptured. Lower portion of the liver was also ruptured. The deceased died about one day before the post mortem examination. 17(b). In cross examination, the doctor admitted that duration of death could 4 to 6 hours on either side of the stated time. 18(a). Dr. P.C. Shukla, was examined as P.W.-4, who radiologically examined injured Shiv Kumar C.W.-1 and exhibited the report as Exh. Ka-3. The witness has stated that he conducted X-ray examination on left thigh and left forearm. In the left thigh region, two metallic radio opaque shadows were seen. In the left forearm, one radio opaque metallic shadows could be seen. 18(b). The witness Dr. P.C. Shukla, P.W.4, was not cross examined. 19(a). Sub Inspector Sita Ram Arya, was examined as P.W.-7. Sub Inspector Sita Ram Arya conducted investigation of the case. The witness has stated that he recorded the statement of complainant Onkar Nath (P.W.-1) and another eye witness Raj Dutt on the day of the incident during late evening/night hours. The details of the investigation have been given. 19(a). Sub Inspector Sita Ram Arya, was examined as P.W.-7. Sub Inspector Sita Ram Arya conducted investigation of the case. The witness has stated that he recorded the statement of complainant Onkar Nath (P.W.-1) and another eye witness Raj Dutt on the day of the incident during late evening/night hours. The details of the investigation have been given. The portion of statement that is relevant for consideration, is that on 1.7.1985, the witness again went to the place of occurrence. The body of the deceased was lying in the field cultivated by Ram Achal. Inquest proceedings were conducted in the presence of witness Ram Bahorey, Chandra Mohan, Vikramajeet, Ziledaar and Kanhaiya. The inquest report has been exhibited as Exh. Ka-7. The documents prepared for sending the dead body for post mortem examination etc. have been exhibited as Exh. Ka-8, Ka-9 and Ka-10. The clothes worn by the deceased, were separately taken in possession vide memo Exh. Ka-11. The dead body was put in a cover and sealed vide Seal Exh. Ka-12. The dead body was sent for post mortem examination. The inquest proceedings were started at about 5.30 a.m. and were concluded by 9.00 a.m. Statements of the witnesses to inquest were taken. Statement of Sahdev was also taken. 19(b). On the pointing out of the complainant and witnesses, the place of occurrence was inspected and site plan was prepared. The site plan has been exhibited as Exh. Ka-14, which was verified by the witnesses. 19(c). The witness has stated that at the place of incident, pieces of wood were found in the grove of Kanhaiya. The witness has further stated that he came to know that tree had been got cut by Sadhoo and Sahdev. 19(d). Where the dead body was lying, the witness found traces of dragging the dead body. Blood samples, samples of earth were collected from where the dead body was lying. Two wads of cartridges were also recovered. The recoveries were effected and recovery memo was prepared in the presence of Kanhaiya and Vikramajeet. The document has been exhibited as Exh. Ka-15. 19(e). Despite best efforts, the accused could not be arrested. Later Amar Nath, Triyugi and Jwala Prasad surrendered before the Court. The chargesheet was filed under the signatures of the witness, which has been exhibited as Exh. Ka-16. The accused Jagdamba @ Bekaru was arrested on 29.7.1985. 19(f). The document has been exhibited as Exh. Ka-15. 19(e). Despite best efforts, the accused could not be arrested. Later Amar Nath, Triyugi and Jwala Prasad surrendered before the Court. The chargesheet was filed under the signatures of the witness, which has been exhibited as Exh. Ka-16. The accused Jagdamba @ Bekaru was arrested on 29.7.1985. 19(f). In cross examination, the witness has stated that there is no mention in the case diary of number of wood pieces recovered from the site. A separate case was registered in regard to cutting of wood. Separate documents were prepared. There was no mark of truck tyres at the place of occurrence and no reference to that effect, has been made in the case diary. The witness has stated that he was unable to say as to how much wood was loaded in the truck because on these lines, investigation was not conducted. 19(g). The witness stated that he did not think it relevant to take the pieces of wood in possession, in investigation of this case, because the other case had already been registered. The tools used for cutting wood were not found at the spot. The place of incident was not photographed because photographer was not available. 19(h). The witness has denied the suggestion to the effect that the story regarding cut wood had been fabricated. The suggestion that after consultation, the report had been prepared, has also been denied. The witness has further stated that there is no mention in the case diary about tyre mark of the tractor belonging to Amar Nath. The tractor belonged to Amar nath. During investigation, the tractor could not be recovered. Amar Nath did not inform about the tractor and therefore there is no entry in this regard in the case diary. All efforts were made to locate the tractor, however, failed. In regard to the fact that the tractor could not be located, statement of witnesses were not recorded. The tractor was of 10 horse power. The witness has denied the suggestion that investigation was conducted only in the morning and not during the late hours of 30.6.1985. The suggestion that the documents had been prepared in the police station after returning from the place of occurrence, has been denied. 19(i). The tractor was of 10 horse power. The witness has denied the suggestion that investigation was conducted only in the morning and not during the late hours of 30.6.1985. The suggestion that the documents had been prepared in the police station after returning from the place of occurrence, has been denied. 19(i). The witness has further stated in his cross examination that in the site plan, although the spot wherefrom wads were recovered, has been shown, the same has not been given in the index/legend. In regard to recovery of pellets, the witness has said that the field was cultivated and was wet and therefore no recovery of pellets could be effected. This, however, has not been recorded in the case diary. 19(j). The witness has stated that during the investigation, no one had mentioned that Asroni was a bold person and used to pursue the cases on behalf of complainant party. Therefore, this fact has not been recorded. Onkar Nath had not told the witness in his statement that after Asroni had fallen down, shots were fired. Similar statement has been given in regard to witness Sahdev and Raj Dutt. 20(a). The defence examined Sadhoo as D.W.-1. Sadhoo, in his examination in chief, has stated that he did not sell tree or grove to Sahdev. The witness, however, admits that he alongwith Kedar, Rameshwar and Ram Nihore owned the grove. All are co -sharers. One of the co-sharers had sold one dry mango tree to Karan. Karan is a timber merchant. The tree was sold during the period intervening murder of Asroni and Holi. The tree had been cut and wood had been lifted before the murder of Asroni. There was no wood in the grove at that time. Other than this dry tree, no other tree had been sold in previous 3-4 years. The investigator did not meet the witness in context of the murder. 20(b). In cross examination, Sadhoo D.W.-1 stated that the grove in which the witness is a co-sharer, is called Kanhaiya's grove. The witness has denied the suggestion that he had sold green tree to Sahdev before murder of Asroni. 20(c). The witness admitted that he was being prosecuted for cutting a tree under Section 4/10 of Forest Conservation Act. The case was lodged against Sahdev. The witness admitted that he had applied for bail in the said case. The witness has denied the suggestion that he had sold green tree to Sahdev before murder of Asroni. 20(c). The witness admitted that he was being prosecuted for cutting a tree under Section 4/10 of Forest Conservation Act. The case was lodged against Sahdev. The witness admitted that he had applied for bail in the said case. The case was still pending trial against the witness. Sahdev admitted to commission of the offence and paid fine. The witness has denied the suggestion that he had given false evidence under the influence of the accused. 20(d). The witness, Sadhoo D.W.-1 admitted that he was tenant of Amar Nath (accused). 21. D.W.-2 Krishna Kant, D.W.-3 Mohd. Sajid and D.W.-4 Ghanshyam Tiwari have given their statements in regard to sending of special report to the residence of the District Magistrate, Gonda on 30.6.1985 at 8.45 p.m. through Rajwanshi. The report was received at the residence of the District Magistrate at 6.45 a.m. On 1.7.1985. 22(a). Radhika Prasad was examined as D.W.-5. The witness has deposed in regard to his father Kedar being a co-sharer in the tree that was sold to Karan, 3-4 months before the murder of Asroni. The witness has further stated that wood had already been lifted before the murder. 22(b). The witness has further stated that Sahdev, son of Gopinath who belongs to the said village, had not purchased any mango tree from Sadhoo. Before the murder of Asroni, Sadhoo was holding shares in five trees in the grove, which trees are still there. 22(c). If Sahdev is saying that he had purchased tree from Sadhoo, it would be a lie. In answer to a question, the witness has stated that about 4-5 months earlier, Onkar Nath had given a piece of land to Shiv Kumar for cultivation purposes. In answer to another question, the witness has stated that he had appeared as a witness without receiving any summon for deposing on that day. The witness has further stated that he had come on earlier date when he had come to know about the next date of hearing. It has been recorded by the court that Triyugi, accused has said something to the witness, on account of which Triyugi was removed from the court. The witness has further stated that he had come on earlier date when he had come to know about the next date of hearing. It has been recorded by the court that Triyugi, accused has said something to the witness, on account of which Triyugi was removed from the court. The witness denied the suggestion that he had given the statement on account of tutoring to the effect that his father had sold the tree to Karan. 23. Learned counsel for the appellants namely Shri B.M.Sahai in his deft and qualitative arguments, has contended that enmity of the appellants was with the prosecution witnesses, as has been given in the F.I.R. In the F.I.R., mention has been made only to animus between P.W.-1 Onkar Nath and appellant no.1 Amar Nath and others. The F.I.R. does not allege any enmity of the appellants with the deceased. The F.I.R. version, however, alleges exhortation by the accused against the deceased Asroni. It has been argued that while there was no enmity with deceased Asroni and there was enmity with P.W.-1 Onkar Nath and others, why would deceased Asroni be targetted. On the strength of this argument, it has been projected that the appellants have been falsely implicated. 24. On the second count, it has been argued that although allegedly Amar Nath was armed with the gun and other accused, other than Jagdamba, were armed with farsa, Bhala and lathi, yet, no injury has been attributed to the said accused appellants. In this view of the matter, it stands proved that the appellants have been falsely implicated on account of animus. It has been contended by Shri B.M.Sahai, Advocate that on rule of prudence, appellant nos.2 to 6 namely Trijugi, Jwala, Nar Singh, Sheo Dayal and Jagdamba @ Bekaru could not have been implicated for any offensive act. Under the circumstances, rule of law should not be invoked under Section 149 I.P.C. 25. On the third count, learned counsel for the appellants has argued that there is improvement in the statements of the witnesses in court over their previous statements given to the police during investigation and the F.I.R. In the F.I.R., injury on the stomach region, has not been shown. The statements given by the prosecution witnesses are post mortem report oriented. After the injuries had been seen by the doctor, the statements have been changed to suit the prosecution case. 26. The statements given by the prosecution witnesses are post mortem report oriented. After the injuries had been seen by the doctor, the statements have been changed to suit the prosecution case. 26. On the fourth count, Shri Sahai has argued that motive, as given in the F.I.R. by P.W.-1 Onkar Nath is three years old, which, however, is between P.W.-1 Onkar Nath and Amar Nath only. The motive against deceased Asroni dates back to the year 1971, as is given in the statement of P.W.-1 Onkar Nath. Any motive as ancient as 13 years' old, could not be the cause of murder of Asroni. 27. The other aspect that has been pointed out is that in the previous statements, there is no allegation that repeated shots were fired after Asroni had fallen down. Much stress has been laid by Shri Sahai on the fact that in the F.I.R., it has not been shown that the accused came on the tractor driven by Jagdamba and gun was taken out by Amar Nath from the bonnet of the tractor. Whereas, the witnesses in court have made this improvement for falsely implicating Jagdamba. Under the circumstances the witnesses are not worthy of trust. 28. It has been argued by Shri Sahai that purchase of tree and cutting of tree, is an introduced fact. The fact has been introduced only to show presence of the witnesses on the spot. In fact the tree had not been purchased by Sahdev and therefore there was no occasion for the witnesses to be present at the spot to load the wood in the truck. 29. Finally, it has been argued that enmity between the parties is admitted. Enmity, however, is a double-edged weapon. Under the circumstances, chances of false implication are high. Antecedents of P.W.-1 Onkar Nath have given in his statement and indicate his past criminal conduct. In such circumstances, the statement of prosecution witnesses are required to be considered with caution. 30. Shri Rajendra Kumar Dwivedi, learned A.G.A., to the contrary, argued that all the accused came together. Enmity between the parties is an admitted fact. F.I.R. is prompt and, therefore there is no chance of false implication. 31. In such circumstances, the statement of prosecution witnesses are required to be considered with caution. 30. Shri Rajendra Kumar Dwivedi, learned A.G.A., to the contrary, argued that all the accused came together. Enmity between the parties is an admitted fact. F.I.R. is prompt and, therefore there is no chance of false implication. 31. In regard to cutting of tree, it has been argued that the statement of investigating officer has established that indeed tree was cut and in that regard, a case under Forest Conservation Act was instituted against Sadhoo and Sahdev, which was still going on. In such circumstances, the prosecution case cannot be doubted. 32. In regard to the discrepancy as regards injuries on the front portion of body of deceased Asroni, Shri Dwivedi has argued that it was a sudden incident. While the complainant side were busy in loading a truck with wood, exhortation was given by multiple accused. The complainant side was followed and shots were fired. In such circumstances, exact sequence could not have been given, with precision. 33. We have considered the rival contentions. 34. The prosecution case is that an incident took place at around 4.00 p.m. in the grove of Kanhaiya. Asroni died on account of multiple homicidal injuries from multiple gun shot injuries received by him on his back and in the front portion of his body. The injuries received by Asroni (deceased) on the front portion are from close range because the intestine, lungs and liver etc. have been found ruptured by Dr. D.A.Khan examined as P.W.-8. Charring and tattooing were found, as also gun powder residue. Cardboard wad was also found in the injuries. 35. The Sequence of events indicates that crime was reported at 7.45 p.m. on the same day viz. 30.6.1985 at police station that is 11 kilometres away. The special report was dispatched at 8.45 p.m. on the same day for District Magistrate, Gonda. Thus, F.I.R. is prompt. 36. The F.I.R. itself names Amar Nath as the main assailant being armed with a gun and Triyugi armed with farsa, Jwala armed with Bhala, Nar Singh and Sheo Dayal, appellants armed with lathi. The said five persons came together. Amar Nath was exhorted to kill Asroni whereupon Amar Nath fired. Some pellets hit Shiv Kumar, C.W.-1 also. 37. 36. The F.I.R. itself names Amar Nath as the main assailant being armed with a gun and Triyugi armed with farsa, Jwala armed with Bhala, Nar Singh and Sheo Dayal, appellants armed with lathi. The said five persons came together. Amar Nath was exhorted to kill Asroni whereupon Amar Nath fired. Some pellets hit Shiv Kumar, C.W.-1 also. 37. P.W.-1 Onkar Nath, P.W.-2 Sahdev, P.W.-3 Raj Dutt and C.W.-1 Shiv Kumar are all eye witnesses named in the F.I.R. itself. All the said witnesses have supported the prosecution case to the effect that all the appellants other than Amar Nath and Jagdamba, exhorted Amar Nath to kill Asroni whereupon Asroni fired. It has also come in the evidence, as noticed above, that Shiv Kumar, C.W.-1 injured was close to Asroni and therefore received pellets injuries. It has also come in evidence that when Asroni (deceased) ran, all the five accused ran after him. 38. In regard to injuries received by Shiv Kumar, Dr. P.C. Shukla, P.W.-4 has been examined, who proved the radiological report. Radio opaque shadows have been found on the person of Shiv Kumar. Dr. P.C. Shukla, P.W.-4 was not cross examined in regard to injuries received by Shiv Kumar or the possibility of radio opaque shadows being fabricated. 39. The discrepancies/contradictions in the previous statements of the witnesses and the statement of the witnesses recorded in court, as pointed out, are in regard to dragging of the body to make it straight or to check whether Asroni had died or not. The other aspects highlighted by learned counsel for the defence are that the pieces of wood were not recovered from the place of incident. The accused being driven on a tractor by Jagdamba does not find mention in the F.I.R., which aspect has been added in subsequent story. Another aspect that has been highlighted is that in the F.I.R., it has not been stated that Amar Nath had gone close to Asroni(deceased) and had fired from close range. 40. In our opinion, the F.I.R. gives essential and material facts of the incident. Names of the accused, other than Jagdamba have been mentioned in the F.I.R. The F.I.R. version and the statements of the witnesses in regard to the role played by the accused and weapons of offence carried by them is also consistent. 41. 40. In our opinion, the F.I.R. gives essential and material facts of the incident. Names of the accused, other than Jagdamba have been mentioned in the F.I.R. The F.I.R. version and the statements of the witnesses in regard to the role played by the accused and weapons of offence carried by them is also consistent. 41. This Court cannot loose sight of the fact that the witnesses are illiterate villagers and were taken by surprise while they were busy in their avocation. Immediately after exhortation, shots were fired, whereupon witnesses started running in different directions. On finding Asroni to be dead, P.W.-1 Onkar Nath made a report, which was not required to be a detailed narration of sequential events. 42. We have also considered the fact that the appellants were inimical not only towards P.W.-1 Onkar Nath, but also towards Asroni who was the main pairokar of the cases on behalf of the complainant. It has come in the statement of P.W.-1 Onkar Nath that Asroni was his cousin. Brother of Asroni was accused of killing the father of Amar Nath, in the year 1971. The said person was acquitted and on account of acquittal, Amar Nath and others were inimical towards Asroni. 43. Considering the above noted facts having come on record, it stands established that the accused appellants were inimical towards Asroni also. Coupled with the said fact, what might have weighed with the accused appellants would have been the fact that Asroni being a strong man, had been defending the complainant side. It has also come on record that Asroni and Manbodh, five days prior to the incident, had made a complaint against appellants Triyugi, Sheo Dayal and Nar Singh in regard to drawing of water from the well and in context of using the path. In such circumstances, we find no merit in the contention of the learned counsel for the appellants that the accused had no animus against Asroni (deceased). 44. In our considered opinion, sufficient evidence has come on record in regard to presence of the witnesses at the place of occurrence. Other than the fact that the F.I.R. was prompt and four witnesses have supported the prosecution case, the investigating officer found pieces of wood lying at the spot, which indicates that indeed a tree was cut. 44. In our considered opinion, sufficient evidence has come on record in regard to presence of the witnesses at the place of occurrence. Other than the fact that the F.I.R. was prompt and four witnesses have supported the prosecution case, the investigating officer found pieces of wood lying at the spot, which indicates that indeed a tree was cut. Evidence has come on record not only in regard to wood lying at the spot but also in regard to a case having been registered against Sahdev, P.W.2 and Sadhoo, D.W.-1. As a defence witness, Sadhoo admitted the fact that he was being prosecuted for cutting of the tree. Thus, presence of the prosecution witnesses at the spot stands established beyond shadow of doubt. Defence version that has come through the statements of D.W.-1 Sadhoo and D.W.-5 Radhika Prasad is not worthy of belief, in the presence of overwhelming evidence indicating otherwise. 45. Having considered the statements of the witnesses cautiously, this Court finds that credibility of the witnesses was not shaken even though the witnesses were cross examined at length. All the four witnesses have made their statements to similar effect in their deposition on oath in court in regard to material aspects of the case. 46. The statements of the prosecution eye witnesses indicate that when Asroni ran, all the five accused namely Amar Nath, Triyugi (since deceased), Jwala, Nar Singh and Sheo Dayal followed him; after Asroni had fallen down, appellant no.1 Amar Nath fired from close range. The facts that all the five accused came duly armed together; four of them exhorted Amar Nath to kill Asroni; Amar Nath fired repeatedly at Asroni and all the five accused ran after Asroni and thereafter ensured that Asroni was dead, leave no measure of doubt in mind of the court that all the five accused appellants constituted an unlawful assembly in prosecution of common object of causing murder of Asroni wherein Shiv Kumar was also injured on account of a gun shot injury. In such circumstances, we find that on touchstone of prudence also the accused appellants committed the crime. 47. In view of the facts, circumstances and reasons given hereinabove, we find appellant Amar Nath to be guilty of offfence under Section 302 I.P.C. for committing murder of Asroni and convict him, accordingly. 48. In such circumstances, we find that on touchstone of prudence also the accused appellants committed the crime. 47. In view of the facts, circumstances and reasons given hereinabove, we find appellant Amar Nath to be guilty of offfence under Section 302 I.P.C. for committing murder of Asroni and convict him, accordingly. 48. We also find Amar Nath to be guilty of committing offence under Section 324 I.P.C. for causing injury on the person of Shiv Kumar and convict him, accordingly. 49. We find all the appellants, including Amar Nath to be guilty of committing offence under Section 302 read with Section 149 I.P.C. and convict them accordingly. (The appeal of Triyugi, who died during pendency of appeal, has abated). 50. We further find all the appellants to be guilty of committing offence under Section 324 read with Section 149 I.P.C. 51. We hereby sentence appellant Amar Nath to undergo life imprisonment under Section 302 I.P.C. and Section 302/149 I.P.C. We further sentence appellant Amar Nath to undergo one year's rigorous imprisonment under Section 324 I.P.C. and Section 324/149 I.P.C. 52. We also award sentence to the appellants namely Jwala, Nar Singh and Sheo Dayal under Section 302 read with Section 149 I.P.C. to undergo life imprisonment. We also sentence appellants Jwala, Nar Singh and Sheo Dayal under section 324 read with Section 149 I.P.C. to undergo rigorous imprisonment for one year. 53. Appeal of Triyugi and Jagdamba is disposed of as having abated, on their death, as noted above. 54. Appeal of appellants, Amar Nath, Jwala, Nar Singh and Sheo Dayal is hereby dismissed. The appellants are on bail, their bail is cancelled and the appellants are directed to surrender before the court concerned within fifteen days from the date of order. They shall serve out sentence as directed and the court below shall take necessary steps in securing the presence, if they do not surrender. Registry to take necessary steps for sending the record before the court concerned for taking appropriate steps. ______________