( 1 ) THIS appeal, by the State of Gujarat, is directed against the judgment and order dated 30. 9. 1985 of the learned Additional Sessions Judge, Junagadh at Porbandar acquitting the respondents (original accused Nos. 1 and 2) from the offences punishable under Section 307 read with Sections 511, 353, 307, 224, 225 and 186 IPC, Section 25 (1) (a) of the Arms Act and Section 135 (1) read with Section 37 (1) of the Bombay Police Act. The appeal was admitted by this Court on 27. 3. 1986. When the appeal reached final hearing, Mr KC Shah, learned Additional Public Prosecutor for the State and Mr KJ Shethna, learned counsel for the respondents state that respondent No. 2-Kharwa Jashu Gagan @ Jivabhai Gagan expired on 2. 12. 1996 (death registered on 4. 12. 1996) as per the death certificate dated 27. 1. 1997 issued by the Registrar of Births and Deaths, Municipal Office, Porbandar, a copy whereof is produced on the record of these proceedings. It is thus obvious that the appeal against respondent No. 2-Kharwa Jasu Gagan has abated. The appeal still survives against respondent No. 1-original accused No. 1-Kharwa Hiralal @ Iku Gagan.

( 2 ) THE respondents herein were charged with aforesaid offences in that on 2. 10. 1984 at 3. 20 AM when PSI-SN Mehta went to arrest the respondents in the terrace of Mulji Govind, father-in-law of the two respondent-brothers, respondent No. 2 assaulted the said complainant-PSI with a knife and attempted to commit murder of the said PSI and thus committed the offence punishable under Section 307 read with Section 511 IPC and also obstructed the said PSI in the discharge of his duties as a public servant and thus committed the offence punishable under Section 353 IPC. At the aforesaid time, date and place, when the complainant-PSI was grappling with accused No. 2, accused No. 1 came out with a pistol and threatened the complainant-PSI to release accused No. 2 and accused No. 1 brandished the illegal pistol, without license, in order to cause death of the complainant-PSI and thus committed the offence punishable under Section 307 read with Section 511 IPC. Both the respondent-accused were also charged with the offence punishable under Section 224 IPC for obstructing their arrest and accused No. 1 was also charged with the offence punishable under Section 225 IPC. Accused No. 1 was further charged with the offence punishable under Section 25 (1) (a) of the Arms Act, 1959 for possessing a fire arm without license. Both the respondents were also charged with the offence punishable under Section 186 IPC for causing illegal obstruction to the police in the discharge of their official duties. The respondents were accordingly charged with the offences punishable under Sections 307, 353, 146 and 511 read with Section 144 IPC and also for the offences punishable under Sections 224, 255 and 186 IPC. Respondent No. 1 was further charged with the offence punishable under Section 25 (1) (a) of the Arms Act and respondent No. 2 was further charged with the offence punishable under Section 135 (1) read with Section 37 (1) of the Bombay Police Act.

( 3 ) THE prosecution case was that in the early morning hours of 2. 10. 1984, PSI-SN Mehta (PW 1) received information that the respondents herein, who were two of the accused in connection with the offence punishable under Sections 302 and 307 IPC registered at CR No. 188 of 1984 at Porbandar City Police Station and who were absconding, were sleeping in the house of Mulji Govind in Kharvawad Ju Falia at Porbandar and on getting the said information, the said PSI consulted his superiors, District Superintendent of Police (DSP) and Sub Divisional Police Officer (SDPO) and alongwith the said superior officers and other members of the police staff and SRP constables, the PSI went to the house of Mulji Govind. Since all the doors and windows for entering the house were found to be closed from inside, as per the instructions of the DSP, the PSI climbed up the ladder