Ramesh Sinha, J. - (1.) The present criminal appeal has been preferred against the judgment and order dated 10.2.1983 passed by IVth Additional Sessions Judge, Ghazipur in S.T. No. 158 of 1982 convicting appellants Udaibhan Singh and Jai Prakash Narain Singh @ Lala and sentencing them to life imprisonment under section 302 I.P.C. and 302/34 I.P.C. respectively.
(2.) The prosecution case as set up in the F.I.R. is that the informant Onkar Singh son of Parasnath Singh had given a written report at police station Karanda, District Ghazipur stating that there is enmity going on between his family members alongwith Udaibhan Singh and his father Jaiprakash Narayan @ Lala resident of his village since long with regard to some landed property and in this respect a panchayat was also held by the villagers. On 21.4.1982, there was marriage of daughter of one Kailashu Vishwakarma, who was his neighbour where he along with his Tau Vikrama Singh and his cousin brother Indradeo Singh had gone. After taking meal at about 12 in the night, he along with his Tau and cousin had gone on his pumping set for sleeping where his father Parasnath was lying from before. He and his cousin Indradeo Singh had slept on one cot whereas his Tau had slept on another cot. There was a lantern burning which was hanging on a stick. He had taken food for his father, who had eaten the same. In between 2:30-3:00 a.m. in the night, accused Udaibhan Singh came near his cot and pulled the bed-sheet on which he and his cousin woke up and his Tau also woke up. At that moment Jaiprakash Narain Singh @ Lala exhorted and stated that Paras is lying here come quickly and shoot him on which Udaibhan Singh went near the cot of his father Parasnath and shot him with country made pistol on his chest from a point blank range and when the informant and the witnesses raised alarm then Udai Bhan Singh again reloaded his country made pistol and threatened them on account of which they kept quiet. Thereafter both the accused ran away towards North, thus, he prayed that necessary action be taken against the accused persons. One Harishchandra took the written report (Ex. Ka. 1) to the police station and gave it to Head Constable Raj Behari Singh in the presence of P.W. 5 S.I. Kamta Singh, who was the then Station Officer at police station Karanda. The Head Constable Raj Behari Singh prepared a chik report (Ex. Ka. 5) and registered a case vide G.D. No. 10 at 8:10 a.m. on 22.4.1982 which was registered as case crime no. 29 of 1982 under section 302 I.P.C. against accused Udai Bhan Singh and Jaiprakash Narain @ Lala. After registration of the case, P.W. 5 S.I. Kamta Singh took up the investigation of the case at 8:25 a.m. He sent two constables to the spot and recorded the statement of Harishchandra, who had taken the written report to the police station. Thereafter, he proceeded to village Vasuchak and went at the tubewell of the deceased. On reaching the place of occurrence, he found that the dead body of the deceased Parasnath was lying on a cot. He took it into his custody and prepared inquest report (Ex. Ka-8). He further prepared challan nash, photo nash, letters to C.M.O. and R.I. (Exs. Ka-9 to 12). After all formalities, he sealed the dead body and handed over the same to Constable American Ram, who has filed his affidavit and village Chaukidar Shyamdeo, who was not produced in the Court, along with necessary papers for being taken to mortuary at Ghazipur. The said two constables handed over the dead body of the deceased Parasnath Singh to P.W. 3 Dr. P.C. Srivastava, who conducted the post mortem on the dead body of the deceased at 2:00 p.m. on 23.4.1982.
(3.) The Investigating Officer thereafter recorded the statements of Onkar Singh, Indradeo Singh and Vikrama Singh under section 161 Cr.P.C. He also inspected the spot and prepared the site plan (Ex. Ka. 13). He found blood stained Kurta of the deceased, his bedding and cot on which he was sleeping. He took the Kurta, quilt, Kathari and Sutari of the cot into custody through a memo (Ex. Ka. 14). He also found an empty cartridge lying on the spot and took into custody and prepared a recovery memo (Ex. Ka. 15) of the same. He also took into custody the lantern which was burning at the time of incident and found the same to be in working condition. He prepared the recovery memo of lantern (Ex. Ka. 16). On 23.4.1982, he recorded the statements of Kailashu, Paras Singh and Shambhoo Singh, who confirmed the fact of holding of Panchayat between the deceased and the accused fortnight ago. He made a search for the accused but they were reported to be absconding and could not be traced out. On 30.4.1982, he visited District Jail Ghazipur where the accused had been lodged after their surrender in the Court and recorded their statements. After completing investigation, he submitted charge-sheet against both the accused on 30.4.1982 which was marked as Ex. Ka. 17.;