Challenge in these appeals is to the common judgement and order dated 06.10.2005 passed by Additional Sessions Judge, FTC No.21, Allahabad in S.T. No. 826 of 1999 ( Crime No. 332 of 1998, P. S. Tharwai, District Allahabad), whereby appellants Jai Singh, Ran Vijay Singh and Devi Prasad Shukla had been convicted under section 148 and 302/149 IPC and had been sentenced to three years' R.I. with fine of Rs. 500/- under section 148 IPC and imprisonment for life with fine of Rs. 5,000/- under section 302/149 IPC with default stipulation. Accused-appellants Dilip Kumar Mallah and Gama Dubey had been convicted u/s 147 and 302/149 IPC and sentence of two years' rigorous imprisonment with fine of Rs. 500/- each and imprisonment for life and fine of Rs. 3,000/- respectively have been awarded to them. Since these appeals arise out of the same incident, so they have been heard together and are being decided by this judgment.

2. Facts germane to these appeals are that on 19.11.1998 at 10.30 P.M. Rajnesh Mishra s/o Ram Surat Mishra, resident of village Kashipur Kumhona, P.S. Tharwai, Allahabad submitted a written report to S.O. P. S. Tharwai stating that today while going to Malaka for taking Chunni-Choker (cattle food) when he reached near triangular crossing Parandih on hearing report of fire he saw that on right side of the road Bal Mukund Shukla having rifle, Jai Singh and Ran Vijay Singh sons of Ram Bali Singh and Devi Prasad Shukla armed with guns were firing shots on a person who was lying on the ground. Two other unknown persons were standing near unnumbered Maruti Van parked on the road. As soon as Bal Mukund Shukla saw him, he asked his companions to run as he ( the injured) had died and all the persons made their escape good in the aforesaid Maruti Van. The report further stated that when the complainant reached near the victim he found that he was his brother Chandra Kant Mishra, Advocate. He sent information to his house and when family members and other villagers arrived there he took the injured immediately to Swaroop Rani Medical Hospital, Allahabad where the doctor declared him dead.

3. On the basis of this report case at crime no. 332/1998, under sections 147, 148, 149, 302 IPC was registered at P.S. Tharwai, investigation whereof was taken up by S.O. Shiv Pujan Singh. The Investigating Officer reached at the spot, recorded the statement of the complainant and at his instance prepared site plan. He took samples of plain and blood stained earth from the spot and also seized 7 cartridges of 12 bore which were lying there through separate memos. S.I. U.N. Singh Yadav conducted inquest upon the cadaver of the deceased in the mortuary of Swaroop Rani Hospital and sent the dead body for autopsy in a sealed cover along with related papers. Dr. Harish Chandra conducted post-mortem examination of the deceased on 20.11.1998 at 3.30 P.M. He found that 40-years' old deceased was healthy built, his eyes and mouth were closed and rigor mortis was present. Doctor has found the following ante mortem injuries on the person of the deceased:

1. Fire arm wound of entry 5 cm. x 5 cm. communicating to injury no.5 directing posteriorly and down and to left being on right side of chest in axillary region. Tattooing and scorching present.

2. Fire arm wound of entry 5 cm x 2 cm x cavity deep on left side of chest, 10 cm below axilla. Tattooing and scorching present directing to right anteriorly and upwards.

3. Fire arm wound of entry 13 cm below injury no.2 size 2 cm x 2 cm with features as of injury no.2.

4. Fire arm wound of entry 3 cm x 2 cm being 13 cm below injury no. 3 and slightly posterior, cavity deep. Tattooing and scorching present directing to right upwards and anteriorly.

5. Fire arm wound exit 7 cm x 7 cm left side lower part back of chest communicating with injury no.1 with multiple wounds of exit measuring 2 mm in diameter.

On exploring the injuries, the doctor found that injury no.1 has passed through right lung, pancre