IMPORTANT POINTS
Evidence of related witnesses cannot be rejected outright.
Plea of alibi has to be positively established.
Even if some accused persons become inactive after sometime they are liable under section 34 IPC.
Plea of prejudice by violation of any provision has to be taken before the trial or appellate court and not before Supreme Court for the first time.

JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.

1. These appeals arise out of the common judgment dated 26.09.2003, by the High Court of Allahabad in Criminal Appeal Nos.814 and 815 of 1981.

2. The appellant in Crl.A.No.814 of 1981 before the High Court is the appellant before this Court in Crl.A.No.1021 of 2004. The second appellant in Crl.A.No.815 of 1981 before the High Court is the appellant before this Court in Crl.A.No.1020 of 2004. The appellant in Crl.A.No.1020 of 2004, as well as one Harihar Singh were tried in Sessions Trial No.164 of 1979 and the appellant in Crl.A.No.1021 of 2004, was tried in Sessions Trial No.228 of 1979. All the accused were charged for an offence under Section 302 read with Section 34 of I.P.C. The present appellant in Crl.A.No.1020 of 2004, as well as the appellant in Crl.A.No.1021 of 2004 were further charged for an offence under Section 379 of I.P.C. All the three accused were awarded life imprisonment for the charge under Section 302 read with Section 34 of I.P.C. and the present appellants in these two appeals were further awarded two years rigorous imprisonment for the charge under Section 379 of I.P.C. When Crl.A.No.815 of 1981 was pending before the High Court, the first appellant Harihar Singh expired and his appeal, therefore, stood abated as against him as per the order of the High Court dated 11.02.2002.

3. It is in the above stated background, as on date, the appeal relating to Sheo Shankar Singh, the appellant in Crl.A.No.1020 of 2004 and Sarvajit Singh @ Sobhu, appellant in Crl.A.No.1021 of 2004, only survive for consideration.

4. As the story of the prosecution goes, on 13.06.1979 at 3.30 p.m. at Badhwa Chau Muhanion Kachcha Road, by the side of the godown of the Irrigation Department near the hovel of Vinod, the deceased Lorik was travelling along with P.W.1 Rakesh Kumar his son, in a motorcycle bearing No.UTH 1287 as a pillion rider. The accused Ranjit Singh along with his father Harihar Singh, his brother Sarvajit Singh @ Sobhu and cousin Sheo Shankar Singh alleged to have pounced upon P.W.1 Rakesh Kumar and the deceased Lorik and stopped their motorcycle by catching hold of its carrier. While P.W.1 attempted to drive fast, the accused Harihar Singh exhorted his associates to kill the deceased, whereupon, Ranjit Singh is stated to have fired a shot and the same hit the deceased Lorik on his back. After receiving the injuries, the deceased Lorik stated to have jumped from the motorcycle and ran away shouting for help. As the deceased Lorik jumped from the motorcycle, P.W.1 Rakesh Kumar lost his balance, fell down and got his leg injured. Ranjit Singh armed with a revolver and the remaining three accused with country made pistols, stated to have attacked the deceased Lorik by firing at him with their weapons and on receiving the injuries, Lorik fell down a few paces ahead and when Ranjit Singh fired again, the deceased is stated to have succumbed to the injuries instantaneously. Thereafter, Ranjit Singh and the appellants stated to have fled away from the scene of occurrence in the motorcycle belonging to P.W.1 Rakesh Kumar while Harihar Singh stated to have ran away from the scene of occurrence.

5. On hearing the hue and cry, Ramjit (PW3) and Shyam Raj, uncles of P.W.1 Rakesh Kumar and one Sheo Narain, who stated to have witnessed the incident, reached the spot. P.W.1 lodged the F.I.R. at Kotwali Police Station at 4.00 P.M., on the same day. The police registered a case in the General Diary and the same is marked as Exs.Ka12 and Ka13. The inquest report prepared by the Investigating Officer (P.W.7) was marked as Ex.Ka14. The site plan map was marked as Ex.Ka19. Dr. Virendra Srivastava at the District Hospital, Ghazipur conducted the autopsy on the body of the deceased on 14.06.1979 at 12.45 p.m. Blood stained clothes and earth was sent for Serologist opinion and the blood group was noted as ‘B’ as per Exs.Ka32 and Ka33.

6. P.Ws.1 and 3, Rakesh Kumar and Ramjit son and brother of the de