Present criminal appeal has been filed by accused-appellants Ganpat, Ram Shanker, Virendra, Shripal and Iqbal against common judgement dated 3.6.1989 passed by Sessions Judge, Etah in Session Trial No. 362 of 1985 (State Vs. Genda Lal and others) and Session Trial No. 217 of 1986 (State Vs. Shripala and another), under Sections 148, 302, 302 I.P.C. read with Section 149 I.P.C. and 307 I.P.C. read with Section 149 I.P.C., Police Station Sahawar, District Etah whereby learned Sessions Judge has convicted accused-appellants Ganpat, Ram Shanker, Virendra, Shripal and Iqabal for offences punishable under Sections 148 I.P.C., 307 I.P.C. read with Section 149 I.P.C. and Section 302 I.P.C. read with Section 149 I.P.C. and has sentenced thereunder each of said appellants with rigorous imprisonment for two years, five years and life imprisonment respectively.

Criminal Appeal No. 1355 of 1989 (Genda Lal Vs. State of U.P.) was also filed by co-accused appellant Genda Lal against aforesaid judgement and order passed by learned Sessions Judge, Etah in aforesaid session trials whereby, he has convicted co-accused appellant Genda Lal for offences punishable under Section 148 I.P.C., 307 I.P.C. read with Section 149 I.P.C. and 302 I.P.C. and has sentenced him thereunder to rigorous imprisonment for two years, five years and life imprisonment respectively but co-accused appellant Genda Lal died during pendency of appeal, therefore his appeal has already been abated.

Accused-appellants Ganpat, Ram Shanker and Shripal also died during pendency of appeal. Present appeal also stands abated in respect of them.

Heard Sri Harish Chandra Tiwari, Advocate holding brief of Shri Brijraj Singh, Advocate on behalf of appellants as well as Shri M. S. Yadav, learned AGA assisted by Sri Hari Krishan Mishra, Advocate for informant.

We have heard learned counsel for the parties and perused records.

According to F.I.R. (Ex. Ka-1), in brief prosecution story is that in the intervening night of 23/24.3.1985, complainant Netrapal and his father Sonpal were sleeping in verandah of Baithak (Drawing Room) and his uncle Raghuvar Dayal and brother Bhoop Singh were sleeping inside Baithak (Drawing Room). The lantern was burning in the Verandah. At about 12.30 in night, accused-appellants Genda Lal, Ganpat, Shripal, Virendra, Ram Shanker and Iqbal came armed with gun and Kattas. They got awaken father of complainant Netrapal and asked him where is Chandra Pal, in the meantime, complainant Netrapal also awoke. Father of complainant told them that Chandra Pal is pulling rickshaw in Delhi. He is not at the house. Thereafter, accused-appellant Genda Lal abused and asked where is Bhoop Singh. He further added that they shall return today after taking revenge of enmity. In the meantime, Bhoop Singh brother of complainant and Raghuar Dayal, uncle of complainant, who were sleeping inside Baithak, came out from Baithak, after having heard noise seeing them accused appellant Ganpat exhorted whereupon accused Genda Lal opened fire at Bhoop Singh. Bhoop Singh sustained injuries of fire and fell down. Other accused appellants also fired with their arms. Complainant Netrapal came out of Varandah and raised alarm whereupon other people of village came and raised alarm. Thereafter, aforesaid accused-appellants ran away through lane (Gali). At the time of running away they were making fire.

According to F.I.R. (Ex. Ka-1), Sonpal father of complainant and uncle Raghuvar Dayal also suffered injuries of fire made by aforesaid accused-appellants. According to F.I.R. (Ex. Ka-1) complainant and witnesses has seen all accused-appellants and has identified them in the light of lantern.

According to F.I.R. (Ex. Ka-1), after occurrence, complainant Netrapal went to police station leaving dead body of his brother Bhoop Singh on spot and presented written report (Ex. Ka-1) in P.S. Sahawar, District Etah.

First Information Report (Ex. Ka-1) was presented by c