Hon’ble Bharat Bhushan, J.—This criminal appeal is directed against the judgement and order dated 25.8.1981 passed by learned IV Additional District and Sessions Judge, Agra in S.T. No. 78 of 1981, whereby the appellant Chhotey Lal was convicted for offence under Sections 307 Indian Penal Code, 1860 (in short IPC) and appellants Bhagwan Das, Jogendra and Munna Lal were convicted under Section 307 read with Section 34 IPC and consequently, they were sentenced to undergo rigorous imprisonment for five years and fine of Rs. 1000/- each with default stipulation.

2. Perusal of record indicates that the appellant No. 1 Chhotey Lal and appellant No. 4 Munna Lal have died during the pendency of the present criminal appeal. Hence their appeal stand abated. This Court has heard the criminal appeal of the surviving appellants Bhagwan Das and Jogendra.

3. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Mr. A.K. Pandey, Advocate, learned counsel appearing for the surviving appellants Bhagwan Das and Jogendra and learned AGA and perused the material on record.

4. In order to find out any scope for interference by this Court into the conviction order recorded by the learned trial Court, it would be appropriate to discuss the prosecution story as unfolded before the learned trial Court.

5. The prosecution story is that appellants were standing near betel shop of Mahesh, P.W-6 on 12.11.2008 at about 11.45 a.m. Injured Ganesh Dutt was going towards his warehouse (godown). Suddenly the accused Chhotey Lal opened fire upon Ganesh Dutt at the instigation of accused Munna. Injured Ganesh Dutt saved himself from the clutches of the accused persons by hiding in the house of one Raghuvir Saran.

6. Report of the incident was lodged on the same day i.e. on 12.11.1980 at about 11.30 a.m. at P.S. Firozabad Uttar on the basis of the telephonic messages given by one P. K. Tailang, (P.W.-1). A case vide Crime No. 594 under Section 307 IPC was registered at P.S. Firozabad North. Investigation was conducted by S.I. Ujagar Singh, P.W.-7. Investigating Officer recorded the statements of the injured and the witnesses and prepared the site plan (Ex-Ka 6). The injured Ganesh Dutt P.W-3 was medically examined at S.N.M. Hospital, Firozabad at 11.55 a.m. The Doctor V.K. Misuriya, Medical Officer (P.W.-5) prepared the injury report (Ex-Ka3) and found the following injury on his person:

“Gun shot wound of entry 1 cm X 1 cm X Cavity Deep (fresh bleeding present) on the right side back of chest 9 cm below the inferior angle of scapula. Blackening present.”

7. After completing the investigation the I.O. submitted the charge-sheet (Ex-Ka-9) against the accused appellants under Section 307 IPC on 26.11.1980. The case was thereafter committed for trial. Accused appellant Chhotey Lal was charged under Section 307 IPC and the appellants Bhagwan Das, Jogendra Kumar and Munna were charged under Section 307 read with Section 34 IPC by trial Court.

8. Prosecution examined seven witnesses - P.W.-1 P.K. Tailang, (first informer), P.W.-2 Ulfat Singh, P.W-3 Ganesh Dutt (injured), P.W-4 Dr. C.K. Gupta, surgeon at S. N. Medical College, Agra, P.W-5 Dr. V.K. Misuriya, P.W-6 Mahesh Chandra and P.W-7 Sub Inspector Ujagar Singh. The defence of the accused was that of false implication in connivance with the police and the injured. Trial Court convicted the appellants and sentenced them as aforesaid. This judgement is under challenge in this appeal.

9. Learned counsel for the surviving appellants has assailed the impugned judgement of conviction on the ground that the Court below has not assessed the evidence adduced before it in its correct perspective. He further submitted that the FIR of the incident did not contain any details of the occurrence and the names of the accused persons and the prosecution has miserably failed to bring home the alleged guilt of the appellants by trustworthy evidence.

10. Learned AGA on the contrary submitted that the learned Trial Court ha