Hon’ble Shashi Kant Gupta, J.—This criminal appeal arises out of the judgment and order dated 25.1.1983 passed by the IInd Additional Sessions Judge, Basti in Sessions Trial No. 76 of 1980 whereby the appellants namely Shitla Singh, Abdul Shakoor, Bhagwan Das and Shitala Prasad Kurmi were convicted and sentenced to undergo two years rigorous imprisonment under Section 148 I.P.C., seven years rigourous imprisonment under Section 307 IPC read with Section 149 IPC and imprisonment to life for offence under Section 302 read with Section 149 IPC. All the sentences were directed to run concurrently.

2. At the outset, it is relevant to mention here that during the pendency of this appeal, the Appellant No. 1 Shitla Singh and Appellant No. 2 Abdul Shakoor have died. Accordingly, vide order dated 8.5.2014, this Court has dismissed the appeal as abated as against the Appellant No. 1 Shitla Singh and Appellant No. 2 Abdul Shakoor. It is also relevant to note that during the pendency of the trial one of the accused namely Pahalwan Singh was murdered on 5.8.1982, therefore, the trial against him also had abated.

3. Now, we are proceeding to consider the present appeal in respect of the remaining appellants No. 3 and appellant No. 4 namely Bhagwan Das and Shitala Prasad Kurmi respectively.

4. The facts of the case as stated in the First Information Report by the informant Uma Shankar Pandey are that on 30.9.1979 he alongwith his relation Ram Shankar Pandey (P.W.1) had gone to petrol pump to purchase diesel. When they could not get diesel they thought of going to Harraiya to enjoy Durga Puja celebration. At about 9.00 p.m. when Uma Shankar was going alongwith Ram Shankar towards Harraiya from the petrol pump, the accused who were sitting in the hut of Asharfi followed them. The accused Shitla Singh was armed with his licensee gun and the rest of the accused were armed with country made pistols. When Uma Shankar and Ram Shankar reached in front of the saw machine of Krishna Prasad, the accused Shitla Singh and rest of the accused started firing at them. Uma Shankar luckily escaped unhurt, however, Ram Shankar sustained pellet injury at his back and fell down. In the meantime, Ram Naresh Dhobi, hearing the sound of the gun shot, came out from his house on the road and, in the process, was hit by fire-arm shots resulting into his death instantaneously. The informant and the witnesses Divakar Prasad, Lachhmi Prasad, Keshav Ram and others have seen the incident and have identified the accused in the torch light who were firing.

5. Uma Shankar Pandey prepared written report Ext. Ka 2 and lodged the same at P.S. Chhaoni where it was entered at Chik FIR No. 227 dated 3.9.79 at 10.15 p.m. vide Ext. Ka 5. On the basis of the said reports a case under Sections 148, 307 and 302 read with Section 149 of the I.P.C. was registered at G.D. Report No. 32 vide Ext. Ka 6. The injured Ram Shankar (P.W.1) was sent to district hospital Basti for medical examination through H.C.C.P. 131 Ram Prasan Dube, O.P. Incharge Harraiya.

6. Ram Shankar was medically examined at district hospital Basti at 11.00 p.m. by Dr R.C. Verma (P.W.8) vide injury report Ext. Ka 19 who found the following injury on his person :

(i) Lacerated wound .5 cm. X .5 cm. depth could not be measured on right side back, 5 cm. below root of neck and 1 cm. from mid line Injury was fresh. Blood clot was present. No blackening or tattooing was found. Nature : The injury was kept under observation and X-ray was advised for presence of any pellet. The cause of the said injury was by some blunt object.

7. The x-ray of the injured was taken on 1.10.1979 vide X-ray plate Ext. 5. According to X-ray report, Ext. Ka 20, one small irregular radio opaque shadow was seen but according to Dr. Verma, it was only due to defect in the screen and not because of any foreign matter and opined that it could be caused by any blunt object.

8. The inquest on the dead body of Ram Naresh Dhobi was held by Sri Rajendr