VIJAY KUMAR VERMA, J. - (1.) CHALLENGE in this appeal preferred under section 374 (2) of the Code of Criminal Pro­cedure (in short 'the Cr.P.C'.), is to the judgment and order dated 4.9.1982, passed by the 5th Additional Sessions Judge Fatehpur in S.T. No. 213 of 1981 (State v. Mathura and another), whereby the accused-appellant Ram Adhar has been convicted and sentenced to undergo imprisonment for life under section 302 read with section 34 of Indian Penal Code (in short 'the IPC"), seven years' rigorous imprisonment under section 307 IPC and six months' rigorous imprisonment under section 323 read with section 34 IPC. All the sentences shall run concurrently.
(2.) BY the same judgment, the co-accused Mathura was also convicted and sentenced to undergo imprisonment for life under section 302 IPC, five years' rigorous imprisonment under section 307 read with section 34 IPC and six months rigorous im­prisonment under section 323 read with section 34 IPC. He also had challenged his conviction and sentence by preferring criminal appeal No. 2228 of 1982, which was connected with this appeal, but due to his absence, that appeal has been sepa­rated. The incident resulting in the death of Ram Kishore @ Andhu s/o Rameshwar occurred in the intervening night of 30/31.12.1980 at about midnight in village Lakhipur, situated within the jurisdiction of Police Station Khaga, District Fatehpur. The first information report was lodged by the complainant Rameshwar s/o Mahipal. The case of the prosecution as appearing from thechik FIR Ext. Ka 17 and statement of the complainant Rameshwar (P.W.I), in brief, is that about 25 years ago, complain­ant's father Sri Mahipal, had given 10 bigha land to his nephew (sister's son) Ram Nath, who thereafter began to live in village Lakhipur after constructing his house be­hind the house of Mahipal. After the death of Ram Nath, his son Mathura came into possession over that land, but on the basis of false entry in the revenue papers, Mathura began to claim half share in the entire land of Mahipal. A panchayat was convened to resolve the dispute, but in vain. Thereafter the complainant filed a case in the Court of Tehsildar Khaga for correction of papers. The pairvi of that case was being done by complainant's son Ram Kishore. 30.12.1980 was fixed in that case. Ram Kishore had gone to attend the case on that day in Tehsil Khaga and when after attending the case he was coming back to his house, Mathura met him in the way near railway line Khaga and threatened him saying that "tumane mukadama dayar karkc achha nahin kiya hai. Tumhe dekh legen." It is alleged that in the intervening night of 30/31.12.1980, the complainant Rameshwar, his son Ram Kishore @ Andhu and grandson Viddya Prasad were sleeping on the roof of the house under the chhappar, where a lantern was litting. Other persons of the family were sleeping outside the house. At about midnight when the moon had risen, four persons came on the roof from southern side, due to which the com­plainant awakened and he saw that Mathura and his son Ram Adhar were armed with guns and their two unknown companions were having lathis in their hands. Mathura and Ram Adhar came near to Ram Kishore and Mathura said that "Ram Kishore leta hai. Sarc ko mar kar muka­dama chalane ka maja dikha do". After this exhortation, Mathura himself fired from gun on the chest of Ram Kishore, due to which he died instantaneously. When the complainant and his grandson Viddya Prasad raised noise, the neighbours Gajraj, Surajbhan and Ram Niranjan @ Jhadole rushed towards the place of occurrence and when they challenged the assailants, Ram Adhar fired towards the complainant and others persons from his gun, but they es­caped. The unknown assailants assaulted Viddya Prasad by means of lathis. When the accused persons were challenged by the village people, they fled away towards southern side.
(3.) LEAVING the dead body of de­ceased Ram Kishore at the place of occur­rence, the complainant went to P.S. Khaga, where he handed over the written report Ext. Ka 1, which was scribed by his grand­son Viddya Prasad. On the basis of this written report, the then constable moharrir Prakash Narayan Singh prepared chik FIR Ext. Ka 17 and registered a case under sec­tion 302 IPC at Crime No. 282/80 on 31.12.1980 at 8.30 a.m. against Mathura, Ram Adhar and two unknown persons. Entry of the registration of FIR was made in G.D. No. 7 Ext. Ka 19.;