Hon’ble Anant Kumar, J.—This criminal appeal under Section 374 Cr.P.C. was initially filed by accused appellants Bhup Singh, Kalyan Singh and Gajadhar alias Gajraj against the judgment and order dated 3.12.1982 passed by the Sessions Judge, Aligarh in respect of Sessions Trial No. 90 of 1982 whereby the appellants were convicted under Section 302/34 I.P.C. and were sentenced to undergo life imprisonment. They were further convicted and sentenced under Section 324/34 I.P.C. for one year Rigorous Imprisonment and under Section 323/34 for three months Rigorous Imprisonment. All the sentences were directed to run concurrently.

2. During pendency of this appeal, the appellants Bhup Singh and Gajadhar alias Gajraj died and thus appeal in respect of them was abated by order of this Court dated 1.11.2007.

3. The prosecution story, in brief, is that the complainant Budhsen alongwith his brother Kallu Singh were partners in the crop of Smt. Shanti Devi wife of Late Murli where they had harvested the crop of potatoes. Out of the said harvest, Kalyan Singh son of Smt. Shanti Devi had returned from Agra after selling two trucks load of potatoes on 29.3.1981 and the entire money was in his custody. Since some crop of potatoes was still lying in the field and therefore to ensure its safety, Kallu Singh, Panna Lal, Smt. Shanti Devi and complainant were sleeping in the said field around the heap of potatoes. At about 11.00 p.m. Kalyan Singh armed with a country made pistol, Bhup Singh armed with Pharsa and Gajadhar armed with spear came to the spot and started assaulting Kallu Singh with their weapons. Upon commotion, the complainant and others woke up and they saw Kalyan Singh shot at Kallu Singh. Kallu Singh died on spot. They also assaulted Smt. Shanti Devi while questioning her wisdom of admitting Kallu Singh as a partner in the crop. All the accused persons were recognized by the complainant and witnesses Netra Pal and Panna Lal by the help of torch which was with the complainant.

4. The aforesaid written complaint was got scribed by one Gyanendra Pal son of Lala Sukh Dayal, resident of Umraoganj, Atrauli, District Aligarh who submitted it on behalf of the complainant at police station Atrauli, District Aligarh which was at a distance of about 2.00 K.M. from the place of occurrence at about 2.10 a.m. on 30.3.1981 which was duly entered as chick report No. 2 at 2.10. a.m. on the said date. The injured Smt. Shanti Devi was sent for medical examination. The Investigating Officer visited the place of occurrence on 30.3.1981 and collected various samples and also took into custody the torch used by the complainant and witnesses and gave it back to them in their custody after preparing a due memo.

5. The dead body of the deceased was sent for post-mortem examination on 30.3.1981 and spear was allegedly recovered at the pointing of Gajadhar when recovery memo was also prepared. The said spear and cloth of the deceased was sent for chemical examination and a charge-sheet was submitted against all the accused persons.

6. The post-mortem on the dead body of the deceased Kallu Singh was conducted on 31.3.1981 and following ante-mortem injuries were found on the body of the deceased :

1. Incised wound 7cm x 0.5cm x bone deep, over left pinna left ear and face and the back of the ear underneath bone is cut.

2. Abrasion 2cm x 1cm just above left eye brow.

3. Abraded contusion multiple in number in an area of 14 cm x 8 cm around the right elbow region.

4. Multiple gunshot wound of entry six in number over right side chest, lateral aspect 5 cm below the axillary fold, each measuring 1 cm x 1 cm x variable depth. No blackening and tattooing present. Margins inverted.

5. Linear abrasion 4 cm long placed transversely over left upper arm front aspect.

6. Incised wound 3.5 cm x 0.5 cm x bone deep over left forearm front.

7. Incised wound 2.5 cm x 0.5 cm x bone deep over thenar.

8. Incised wound 1cm x 0.5 cm x muscle deep over left thumb.

9. Incised wo