Hon’ble Rajesh Chandra, J.—Accused appellant Brahmanand Shukla has filed

this appeal against the judgment and order dated 23.9.1981 passed by the Sessions Judge, Allahabad in S.T. No. 18 of 1980, State v. Brahmanand and others, convicting and sentencing the accused appellant with imprisonment for life for the offence under Section 302 IPC.

2. At the outset, it is proper to mention that after filing of the appeal, the original record of the Sessions Trial was summoned from the District Court, Allahabad. The District Judge reported that the file is missing and attempts are being made to trace the file. Ultimately when the file could not be traced, this Court vide order dated 18.7.2008 in view of the judgment of Hon’ble the Apex Court in State of U.P. v. Abhay Raj Singh, AIR 2004 SC 3235, ordered the District Judge, Allahabad to take steps for reconstruction of the record by calling for the documents if are available with the police, the complainant, the accused and the D.G.C. The record shows that the Additional District & Sessions Judge vide letter dated 24.10.2008 informed this Court that the D.G.C.(Criminal), the accused and the police station concerned could not make any document relating to the case available. It was also informed that the name of the complainant of the case could not be known hence the complainant could not be informed with regard to the reconstruction of the file.

3. When the matter came up before us, we made enquiries from the appellant with regard to the name and address of the informant and ultimately the particulars of the informant were given by the appellant. Notices were issued to the informant, who appeared before us personally. He was instructed to contact his private counsel who had conducted the case in the trial Court and to find out whether any document relating to the case is available with him or not. The informant on a subsequent date informed that no such document is available with his private counsel as well. Thus the endeavour of this Court to get the record reconstructed did not succeed.

4. The facts as discernible from the copy of the judgment which has been filed alongwith this appeal are that on 9.11.1979 sports were going on at the playground of Ishwar Saran Intermediate College. A large number of persons, including the deceased Ashok Kumar, his brother Vinod Kumar and his friends Subhash Chandra Kesarwani and Ashok Kumar Pal had collected around the playground to witness the sports. At about 11.10 a.m. accused Bharat Tewari, Brahmanand Shukla and Krishna Ram Shukla came to the playground on a scooter. The scooter was being driven by Bharat Tewari and the other two armed with guns were on the pillion seat. After coming to the playground, they stood behind the deceased and his brother and friends referred to above. At that point of time accused Gopal Shukla also arrived on a cycle and was armed with a gun. Further case of the prosecution is that appellant Brahmanand Shukla pointing towards the deceased Ashok Kumar said to Bharat Tewari “ he is the person who had humiliated him in the wrestling competition and that he be done away with”. Accused Bharat Tewari endorsed the above said saying. The appellant Brahmanand Shukla thereafter fired a shot with his single barrel gun hitting the deceased on the right side of his chest. As a result of this firing,the said Ashok Kumar fell down on the ground. The accused Bharat Tewari, Krishna Ram Shukla and Gopal Shukla then declared that in case anybody comes to face them, he would be shot dead. Thereafter the accused Bharat Tewari, Krishna Ram Shukla and Brahmanand Shukla left the place on their scooter and simultaneously the accused Krishna Ram Shukla in order to ward off the chasers fired a shot from his gun. The fourth accused Gopal Shukla also left the spot on his cycle.

5. Vinod Kumar, brother of the deceased and his friends chased the assailants for some distance but after Krishna Ram Shukla fired a shot, they got frightened and gave u