Judgment :-

J.M. Panchal, J.

This appeal, by special leave, is directed against judgment dated February 17, 2000, rendered by the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal No. 2541 of 1980, by which judgment dated October 25, 1980, passed by the learned IV Additional Sessions Judge, Meerut in Sessions Trial No. 253 of 1980 convicting the respondents under Section 302 read with Section 34 IPC and sentencing each of them to life imprisonment, has been set aside.

2. The facts emerging from the record of the case are as under:

Deceased Ishwar Singh belonged to village Khalidpur, P.S. Mawana. The two respondents are real brothers and they also belong to the same village. The incident in question took place on March 22, 1980. In the morning of the date of incident, Ishwar Singh was returning home at about 6.15 A.M., after easing himself in the fields situated on the east of the Rajbaha (canal drainage), which runs from north to south and which is located at a distance of about 200 yards from the Abadi of village Khalidpur. For going to home he was required to cross the Rajbaha which was then dry. When he was climbing up western patri of Rajbaha through the footpath, both the respondents were standing inside the Rajbaha along the western strip and quite near to the aforesaid footpath. The respondents had covered themselves with Chadars and on sighting Ishwar Singh, took out country made pistols, which they had wrapped in Chadars and fired one shot each at Ishwar Singh. Rishipal, Brijpal Singh, Karan Singh, Dhara Singh and Jaghir Singh were also returning towards the Rajbaha from the fields located on the east and witnessed the incident. After having fired shots at Ishwar Singh, both the respondents ran away. The aforementioned persons chased the respondents but the respondents could not be apprehended. Therefore, they returned to the spot where Ishwar Singh was lying. They found him to be bleeding and making utterances. A cot was then brought from the village by Brijpal Singh and Ishwar Singh was laid thereon. He was thereafter taken to the village. Subsequently, Ishwar Singh was placed in a trolly of a tractor belonging to one Harbir Singh and was brought to Mawana. On way to Mawana, near the crusher of Vijai Singh, Ishwar Singh succumbed to his injuries. The tractor, therefore, was stopped and eye witness Rishi Pal scribed a report of the occurrence. Rishi Pal along with others carried the dead body of Ishwar Singh in the same tractor to P.S. Mawana and lodged FIR.

3. In view of the contents of FIR offences were registered and investigation started. On completion of investigation both the respondents were charge-sheeted in the court of learned Magistrate. As the offence punishable under Section 302 IPC is exclusively triable by a court of Sessions, the case was committed to the Sessions Court, Meerut for trial. The learned Judge, to whom the trial was made over, framed necessary charge against the respondents. The charge was read over and explained to them. However, they pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution examined several witnesses including eye witnesses and produced documents in support of its case against the respondents. After completion of recording of evidence of prosecution witnesses was over, the learned Judge explained to the respondents the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In further statements, the case of the respondents was that of total denial.

4. On appreciation of evidence adduced by the prosecution the learned Judge held that it was proved by the prosecution that deceased Ishwar Singh died a homicidal death. After appreciating the evidence of eye witnesses, the learned Judge concluded that their evidence was trust worthy and should be acted upon. All the three eye witnesses had deposed that the deceased was fire