JUDGMENT

Bhan, J.-Seven persons Meharbansingh, A1, Pratap Singh, A2, Mahendra Singh A3, Uday Bhan Singh, A4, Nawab Singh, A5, Nirpat Singh, A6, and Jandel Singh, A7, were named in the First Information Report No. 246 of 1979 recorded at Police Station Dabara on 30th September, 1979 at 8.45 P.M. for the murder of Prakash which took place at Village Kheri, which is at a distance of 3 Km. from the Police Station. The First Information Report was lodged by Ramgopal Chipa, PW1, who was present at the place of occurrence when the incident took place.

2. A3 died during trial AND A6, who is convicted, has not preferred any appeal. We are told at the hearing that he has also since died.

3. A1 Meharbansingh and A2 Pratap Singh absconded. Their trial was separated from the other three accused.

4. Uday Bhan Singh, A4, Nawab Singh, A5, Nirpat Singh, A6 (since deceased) and Jandel Singh, A7 were tried in Criminal Trial No. 54/1980. They were convicted under Section 120-B, 147, 302 read with Section 149 of IPC. They were sentenced to one year R.I. under Sections 120-B, 147 and for life under Section 302/149 I.P.C. by the judgment of Additional Sessions Judge, Gwalior dated 15.09.1980. Aggrieved against which these three appellants and another Nirpat Singh (since deceased) filed two separate appeals one by Jandel Singh, A7 and the other by the other three accused Udhay Bhan Singh A4 and Nawab Singh, A5 and Nirpat Singh A6. The appeals were partly accepted by the High Court. It was held that a case under Section 302 I.P.C. was not made out as there was no clear evidence on record as to which of these accused had caused fatal injury which could be sufficient in ordinary course of nature to cause death and instead they were convicted under Section 304 Part-I, I.P.C. They were sentenced to one year R.I. under Sections 120-B, 147 I.P.C. and seven years R.I. under Sections 304 Part-I read with section 149 I.P.C. A fine of Rs. 7,000/- (Rupees Seven thousand) was also imposed.

5. Jandel Singh, A7 has filed Criminal Appeal No. 1690 of 1996 and the other two accused Uday Bhan Singh, A4 and Nawab Singh, A5 have filed Criminal Appeal No. 1691 of 1996 in this Court which are being disposed of by this common judgment.

6. The absconding accused A1 Meharban Singh and A2 Pratap Singh were tried in Session trial Case No. 73/1982. Both the accused were acquitted by the trial court. The order of acquittal was maintained by the High Court against which no further appeal was filed in this Court. The order of acquittal thus became final.

7. The prosecution story is that on 30th September, 1979 Meharban Singh, A1 invited Prakash (deceased), Ram Gopal, PW1 and Narayan, PW5 for dinner in connection with the last rite (thirteenth day) ceremony of his father. While Prakash and Ram Gopal, PW1 were on their way to the house of Meharban Singh, A1, they met Narayan, PW5 who was also going to the house of Meharban Singh, in the same connection. A2 to A7 had also come to the house of Meharbansingh to attend the thirteenth day ceremony. Meharban Singh, A1 introduced Prakash with the other accused persons. Thereafter Prakash (deceased), Ram Gopal, PW1 and Narayan, PW5 started eating the food served to them sitting in the Varandah (Paur) where a lantern was burning. The accused persons were sitting on a cot. They were smoking bidis and were whispering amongst themselves. When they had taken half of their meals, they heard gun fire from outside and in that process the lantern was extinguished. Realizing the danger Prakash (deceased), Ram Gopal, PW1 and Narayan, PW5 tried to run away. They heard the accused saying "pakdo pakdo". Prakash (deceased), Ram Gopal, PW1 and Narayan, PW5 somehow managed to come on the road and tried to escape through the Gali, which goes towards Ram Janki Temple. Prakash (deceased) was caught hold by the accused persons who pulled him down. Mahendra Singh, A3 fired at Prakash (deceased) with his country made pistol (Katta). Thereafter Meharban Singh, A1, Prata