Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal arises from judgment and order of conviction dated 17.10.2008 passed by the Additional Sessions Judge, Court No. 1, Azamgarh in Session Trial No. 386 of 1993, State v. Raghunath Dixit and others.

2. Four accused namely present appellant Radhey Shyam, Raghunath Dixit father of the appellant, Om Prakash Dixit brother and one Mukhram Pandey were sent up for trial. Three accused Raghunath Dixit, Om Prakash and Mukhram Pandey have been acquitted and granted benefit of doubt. The present appellant Radhey Shyam Dixit has been convicted under Section 302/34 I.P.C. and sentenced to undergo life imprisonment and also imposed fine of Rs. 10,000/-, in default of payment of fine, a further imprisonment of one year.

3. The occurrence is alleged to have taken place on 26.4.1990 at 11.00 P.M. in front of the house of Bechu Pandey in village Jiyasad, Police Station Mehnagar, District Azamgarh. The F.I.R. was lodged on 27.4.1990 at 00.15 hours at the concerned police station Mehnagar by Subhash Pandey PW-1, son of the deceased Bechu Pandey.

4. The prosecution case as unfolded in the F.I.R. is that first informant is first cousin of Sabhakar Tripathi and there is ongoing enmity between the accused and Sabhakar Tripathi, a number of litigation is going on. The deceased used to help Sabhakar Tripathi and as a consequence incurred grudge from Raghunath Dixit, his sons Om Prakash and Radhey Shyam as well as one Mukhram Pandey. On 26.4.1990 Bechu Pandey was sleeping at his door after taking dinner. According to the narration of the F.I.R., the complainant claims to have been sleeping near him. All the four accused named in the F.I.R. namely Raghunath Dixit, Om Prakash Dixit, Radhey Shyam Dixit and Mukhram Pandey came there. Radhey Shyam was armed with Katta and remaining accused had lathi and spear. The appellant is alleged to have fired shot. Hue and cry was raised by the first informant and his brother Vijay Prakash. On hearing shots, Gauri Shankar Pandey son of Buddhu Pandey, Sabhakar Tripathi, Vinod Shankar and others came along with a torch. The accused were chased but they were able to make good their escape.

5. The prosecution examined three witnesses of fact namely Subhash Pandey PW-1 complainant, Sabhakar Tripathi PW-2, scribe of report, and Gauri Shankar Pandey PW-3. Formal witnesses are PW-4 Rakesh Kumar Singh, Gama Yadav PW-5 who proved chik F.I.R., Ram Dulare Yadav PW-6 proved handwriting of Dr. T.K. Jha who performed post mortem on the body of the deceased and Mukteshwar Singh PW-7. Investigating Officer Ram Mohan Singh has not been examined. One witness has been produced in defence as DW-1 Shridhar Pandey.

6. Eye-witnesses Vijay Prakash and Vinod Shankar have not been examined by the prosecution. Subhash Pandey, son of the deceased has been declared hostile. He disowned the narration of the F.I.R. as well as the fact that its contents was dictated by him. PW-2 Sabhakar Tripathi and Gauri Shankar Pandey PW-3 are two witnesses of fact.

7. All the accused named in the F.I.R. are related. Raghunath Dixit who had faced trial as an accused, had three sons namely appellant Radhey Shyam, Om Prakash and Shree Prakash. Om Prakash was also co-accused in the instant case but he has been acquitted by the Sessions Judge. Shree Prakash was murdered in October, 1989. The accused in the said murder were Ashok son of Sabhakar Tripathi PW-2, Vijay Shankar and Uma Shankar, nephews of PW-2 Sabhakar Tripathi and PW-3 Gauri Shankar Pandey himself. The trial of murder of Shree Prakash brother of the appellant was still continuing at the time when the present incident took place.

8. Sri Kamal Krishna, Senior Advocate, assisted by Sri Manoj Kumar Singh appearing on behalf of the appellant has placed evidence of PW-1 who was declared hostile and cross examined by the prosecution. The first informant has admitted that a number of litigations were continuing between Raghunath Dixit and Sabhakar Tripathi