JUDGMENT

R. BANUMATHI, J.:–This appeal is preferred against the judgment dated 17.12.2004 passed by the Allahabad High Court in Criminal Appeal No.796 of 1981 whereby the High Court affirmed the conviction of the appellant Abdul Waheed under Sections 302, 148 and 323 IPC read with Section 149 IPC and sentence of life imprisonment and one year rigorous imprisonment respectively awarded to him. The High Court partly allowed the appeal qua accused Babu Khan, Mukhtiyar, Javed Khan and Mohd. Hafeez Khan. The appeal before the High Court abated qua accused Vakil Khan, Abdul Hai and Shafiq Khan.

2. Case of the prosecution is that complainant-Razzaq Khan’s brother Abbas and Shabbir instituted a suit in the court of Munsif, Farrukhabad and an injunction order was issued by the court. Despite the court order, appellant Abdul Waheed did not stop construction and continued the construction on the Panchayat Ghar. Due to the continuing unlawful act of the appellant, contempt proceedings were initiated against him and the case was listed for hearing on 06.11.1974. One day before the hearing date i.e. 05.11.1974, at about 8.00 p.m., the complainant was sitting near the chabutra of the well along with Abbas, Shubrati and Israr discussing about the court hearing. At that time, Abdul Hai, appellant-Abdul Waheed, Vakil Khan, Babu, Shafiq, Mukhtiar, Javed and Hafeez came there and abused them giving a warning that they would be killed if they proceeded to the court next day. Abbas replied back saying that he has instituted the suit and he will pursue the matter. Appellant-Abdul Waheed, Abdul Hai and Shafiq were armed with licensed guns, while the rest had lathis and dandas. On hearing the altercations, Ashfaq, Ishtiyaq, Yasim Khan, Ali Daraj and Mohd. Yaseen came to the spot and intervened saying that the court would decide the issue. Abdul Waheed and Shafiq exhorted others to break the bones, whereupon Babu, Vakil, Mukhtiyar, Javed and Hafeez started inflicting injuries by giving lathi blows. Ishtiyaq and Ashfaq used lathis in defence. The accused Abdul Hai, Abdul Waheed and Shafiq opened fire on the complainant party. Abdul Waheed’s gunshot directly hit Abbas in his arm and Abbas sustained fracture injuries and he died little thereafter. Israr was also hit by pellets and sustained gunshot injuries.

3. On the complaint lodged by Razzaq Khan (PW-1), a case was registered in Crime Case No. 313/1974 at Police Station Kamalganj under Sections 147, 148, 302, 302/149 & 302/149 IPC and Bisheshwar Singh, Sub Inspector of Police (PW-7) had taken up the investigation. Injured Ashfaq Khan, Ishtiyaq Khan, Razzaq Khan and Shubrati were admitted in Primary Health Centre Kamalganj and after first aid they were referred to District Hospital Fatehgarh where they were treated. Dr. H.D. Gupta conducted post-mortem on the body of Abbas on 06.11.1974 and issued post-mortem certificate (Ext.Ka-25) opining that Abbas died of shock and haemorrhage due to injuries sustained by him. Injured Israr Khan was admitted as indoor patient in District Hospital Fatehgarh and he was discharged from the hospital on 18.11.1974. Thereafter Israr was again admitted in the hospital on 14.12.1974 complaining of intestinal obstruction. On 16.12.1974, dying declaration of Israr Khan (Ext Ka-28) was recorded in the District Hospital by Sri Vinai Kumar (PW-13) the then S.D.M. Sadar. Dr. Sabir Hussain has given a certificate (Ext.Ka-17) that Israr Khan was in a fit state of mind to give dying declaration. Despite treatment Israr Khan died on 18.12.1974. Dr. S. Tandon (PW-10) conducted the autopsy on the body of deceased-Israr Khan and issued post-mortem certificate (Ext.Ka-24) opining that the death was due to shock as septic peritonitis which according to the doctor, Israr could have developed for want of proper treatment of injuries. After due investigation charge sheet was filed against the accused on 07.01.1975 under Sections 147, 148, 302 IPC read with Section 149 IPC (two counts).

4. To bri