K. S. Rakhra, J. - (1.)APPELLANTS Ram Dulare and Jhigai have filed this appeal against the judgment and order dated 8.4.1982 passed by Sessions Judge, Mirzapur in Sessions Trial No. 167 of 1981, State v. Ram Dulare and another, convicting the appellant-Ram Dulare under Sections 302, 323/149 and 148, I.P.C. and Jhingai under Sections 302/149/323/149 and 148, I.P.C. and sentencing each of them to imprisonment for life on the Ist count, one year rigorous imprisonment under each of the IInd and IIIrd count respectively.
(2.)ON 17.4.1981 at 1.45 a.m., one Bechan resident of village Narga within the circle of police station Pannuganj, district Mirzapur lodged a report of dacoity at his house in the night of 16/17.4.1981 which is Ex. Ka-11. The narration of facts in the report were that in the preceding night at about 10 p.m., he was sleeping at his khalihan just towards south of his house. His wife, daughter-in-law and other members of the family including his son Prem Nath P.W. 7 were sleeping inside the house. At about mid night the appellants Ram Dulare and Jhigai resident of Dhewal alongwith five or six unknown dacoits came to him in khalihan. Ram Dulare and Jhigai armed with guns and their companions with lathis belaboured him. They commanded him to get the door of his house opened and to ask Prem Narain to come out. The informant under pressure gave a call on which his wife Smt. Kalawati opened the door of the house. As soon as the door was opened, appellant-Ram Dulare fired a shot towards the door causing fire arm injury to Kalawati. Culprits thereafter took to their heels but in the meantime informant's son Prem Narain and witnesses Hari Das, Bachau P.W. 8 and Ram Chandra P.W. 9 etc. had gathered on the spot. The dacoits were recognized in the moon light. ONe silver ear top of Kalawati was found missing. ON the basis of these facts, first information report was registered as Crime No. 37 under Sections 395 and 397, I.P.C. It was further alleged by informant Bechan that this dacoity was committed on account of old enmity with aforesaid persons. Kalawati later on died on 17.4.1981 at 11.50 a.m.
The enmity which the prosecution later on tried to establish, was that about a month prior to this dacoity appellant-Jhigai's son Babu Lal had a quarrel with the son of witness Haridas on the question of grazing of cattles. Following this, Jhigai had gone to village Narga to quarrel with Hari Das and his son. At that time informant's son Prem Nath had rebuked him for this. The prosecution further alleged that 2-3 days after this incident, the appellant-Ram Dulare had come to village Narga and called Prem Narain at the door of Dhandhari and had admonished and threatened him for his behaviour with Jhigai on the said issue.

Undisputedly the appellant-Ram Dulare is a resident of village Nawagaon which is about two miles from village Narga and he is related to Dhandhari of village Narga. Similarly appellant-Jhigai is resident of Dhewal which is at a distance of about one mile from Narga. The informant claimed that he knew Ram Dulare and Jhigai since last 10 or 12 years. Jhigai's son Babu Lal used to graze cattle of Ram Pyare of village Narga. The enmity which prosecution has tried to establish through evidence was not detailed in the first information report Ex. Ka-11.

(3.)THE prosecution case as developed in the evidence was that after the incident the informant with the help of his son Prem Nath and witnesses laid Smt. Kalawati on a cot and they all proceeded with her to the police station. On their way a written report was scribed at village Bakwar by one Pratap Narain and on the basis of this report (Ex. Ka-10) aforesaid crime was registered and the informant and his wife were referred to Government Hospital, Mirzapur. At the hospital Kalawati died on the same day at 11.50 a.m. and injuries of Bechan P.W. 6 were examined. THE distance between village Narga and village Bakwar where the written report was scribed is about one mile.
Head constable Ali Hyder P.W. 10 at Police Station, Pannuganj, registered this crime on the basis of the written report and had referred the two injured persons for medical examination at the Government Hospital. Although the first information report was registered under Section 395/397, I.P.C. and its investigation was commenced by S.I. Bhola Prasad Yadav P.W. 12 but the police was not confident about this dacoity. The Investigating Officer after recording the statement of Bechan P.W. 6 at the police station itself immediately left for village Narga and reached there in the night at 3 a.m. He prepared a site plan Ex. Ka-21 and collected blood stained and plain earth vide memo Ex. Ka-22 ; recorded the statement of witnesses including Hari Das and Ram Chandra named in the first information report. He made a search for the accused persons but could not trace them out. After conducting investigation upto 19.4.1981 the Investigating Officer realised that it was in fact not a case of dacoity under Section 393/397, I.P.C. but it was a case under Section 307, I.P.C. Accordingly on 14.8.1981, when the Investigating Officer returned back to the police station, he altered the case under Section 147/ 148/307, I.P.C. making relevant entries in the General Diary of the police station.