Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the accused appellants against the judgement and order dated 20.12.1982 passed by the 3rd Additional District and Sessions Judge, Badaun in Session Trial No. 164 of 1982 (State v. Shamshad alias Bhurey and others) convicting and sentencing the appellants for the offences punishable under Section 302/34 IPC to undergo life imprisonment.

2. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 1 - Shamshad alias Bhure has died. Accordingly, vide order dated 26.3.2015 this Court has abated the appeal in respect of the appellant No. 1 - Shamshad alias Bhurey.

3. Now, we are proceeding to consider the present appeal in respect of rest of the appellants i.e. Sajjad alias Ghungru and Karrar alias Qayoom.

4. The facts of the case, as unfolded by the informant Mohd. Yusuf son of Aijaz Husain in the First Information Report (in short ‘F.I.R.’), are that there was an old animosity between the informant Mohd. Yusuf and one Karrar and his brothers. On 29.10.1981 between 5 to 5.30 p.m. informant’s younger brother Mohd. Mustafa and nephew Irfan were returning back home from their fields and when they were passing through their khandhar, accused Karrar alias Qayoom son of Mohd. Hasan and his brothers Shamshad alias Bhurey and Sajjad alias Ghungroo of the informant’s village armed with tamanchas in their hands came out from the dilapidated kothri of the khandhar. They all began to make fire at Mohd. Mustafa, brother of the informant, out of which, one shot fired from their fire-arms by Shamshad alias Bhurey hit the wall. His brother fell-down in khandhar itself. On hue and cry, Raftar Husain son of Naushey Ali, Mukhtyar Husain son of Tahawwar Ali and Hashmat Ullah son of Salam Ulla and Mohd. Ajar (cousin of the informant) son of Mohd. Umar reached the spot, on the challenge, the accused fled from the spot. He further narrated that informant and others saw that his brother Mohd. Mustafa was lying dead. Due to fear, he could not go in the night to lodge the FIR. On the next morning, after leaving the family members and other villagers near the dead body, he proceeded to lodge the FIR.

5. On the basis of the written report (Ext. ka-3) scribed by one Intezar Ahmad, chik First Information Report (Ext. Ka-1) was registered at Police Station concerned on 30.10.1981 at 8.04 a.m. mentioning all the details as had been described in Ext. Ka-.3. G.D. entry was also made at the same time, which is Ext. Ka-2.

6. Investigation was entrusted to sub-Inspector Ramesh Chandra Pandey, Incharge of the concerned police station. After recording the statement of informant Mohd. Yusuf, he alongwith other police personnel proceeded to the place of incident on the same day and prepared the inquest report (Ext. ka-4). The Investigating Officer also prepared photo lash (Ext. ka-5), challan lash (Ext. Ka-7), sample seal (Ext. ka-6), letter to R.I. (Ext. ka-8) and letter to Medical Officer, Badaun (Ext. ka-9) for post-mortem. The dead body was kept in sealed cover and was dispatched through constable Shiv Charan Lal and village chaukidar Gulzari alongwith the police papers for post-mortem. Site plan (Ext. Ka-10) was also prepared. The Investigating Officer also took the sample of plain earth and bloodstained earth from the place of occurrence and also prepared the memo in this regard. He found 15 pellets on the spot and prepared memo Ex.ka-12 in this respect.

7. Autopsy report (Ext. ka-14) was prepared after conducting the post-mortem on 31.10.1981 at 1.30 p.m.

8. As per the post-mortem report, the deceased was about 40 years old. On external examination he found that the deceased was average built and the rigor mortis passed out from upper extremity and passing off from the lower extremities, patches of greenish discolouration over lower abdomen was present on the body and features were bloated and eyes were closed.

9. On examination of the dead body