K.K.MISRA, J. - (1.) This appeal arises out of the judgment and order dated 11-9- 81 passed by Sri D. N. Shukla, the then Addl. Sessions Judge, Budaun in Session Trial No. 166 of 1980 State v. Hukum Singh and others convicting both appellants Hukum Singh, Thakuri under Sections 302/34, IPC and 324/34, IPC and sentencing each of them to undergo life imprisonment and one year's R.I. respectively. The sentences were directed to run concurrently. Two others, namely, Tej Singh and Karan Singh were acquitted.
(2.) The prosecution case in brief was that PW-2 Siya Ram and his brother Sukh Ram deceased had sold a she-buffalo to accused-appellants Hukum Singh and Thakuri for a sum of Rs. 825/- but initially a sum of Rs. 75/- was paid and the balance amount was to be paid after a month. When in spite of several demands the appellants did not pay the balance amount. PW-1 Sadhoo Ram, informant and Sukh Ram deceased went to the house of the appellants in their absence and brought back the she-buffalo. On the date of occurrence i.e. 19-9-1979 informant Sadhoo Ram, (PW-1), his father Siya Ram (PW-2) and Sukh Ram deceased were grazing their animals including that she-buffalo in the jungle of Dhak trees to the north of the river Bhainsora near the village of the accused. At about 2 p.m. the accused came there and wanted to take away the she-buffalo. Both the appellants were armed with spears and the other two co-accused persons (acquitted) were armed with Lathis. When the complainant party tried to prevent them from taking away the animal, the accused persons assaulted them which resulted in the death of Sukh Ram on the spot. First informant PW-1 Sadhoo Ram and PW-2 Siya Ram also sustained injuries in the incident. The accused thereafter took away the animal. Sadhoo Ram informant thereafter went to the P. S. Ujhiani leaving the dead body of Sukh Ram deceased and Siya Ram at the place of occurrence and lodged the F.I.R. by oral narration. The distance from the place of occurrence to the Police Station was 9 kms. The FIR was registered as case crime No. 359 of 1979 on 19-9-79 at 5.10 p.m. The investigation of the case was undertaken by PW-6 Sub-Inspector Raghunath Singh. He went to the place of occurrence and collected blood stained and plain earth, prepared the site plan of the place of occurrence, conducted the inquest of the dead body and forwarded the same for post-mortem examination.
(3.) At the trial, the prosecution in order to prove its case against the accused examined seven witnesses. PW-1 Sadhoo Ram, PW-2 Siya Ram, PW-3, Mukat Singh and PW-4 Munna Lal were eye-witnesses and rests of the witnesses were formal. However, at the trial out of four eye-witnesses, two witnesses, namely, PW-3 Mukat Singh and PW-4 Munna Lal turned hostile and did not support the prosecution case.;