Hon’ble Shashi Kant Gupta, J.—This appeal has been preferred by the accused-appellants against the judgment and order dated 2.8.1984 passed by the Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of 1982 & 76 of 1983, under Sections 302, 302/34 IPC, Police Station Mahuli, District Basti whereby the accused appellant No. 1 has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC and the appellant Nos. 2 to 4 have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34 IPC.

1A. The present appeal was filed in the year 1984 against the impugned judgment dated 2.8.1984 and it has come up for hearing before us after the lapse of a period of about 32 years.

2. At the outset, it is pertinent to mention here that during the pendency of this appeal, the appellant No. 3 namely Samiullah had died. Accordingly, vide order dated 20.4.2016, this Court has abated the appeal in respect of the appellant No. 3 namely Samiullah.

3. Now, we are proceeding to consider the present appeal in respect of the remaining appellants i.e. appellant Nos. 1, 2 and 4 namely Rafi Ullah, Rafi Ahmad and Alimul Kadar alias Dhil Dhil.

4. The factual scenario as described by the prosecution is essentially as follows:

The deceased Mohamad Haroon was nominated as an accused alongwith his brother Baitullah and other companions for the murder of Nabi Rasool, the real brother of the accused Rafi Ullah in the year 1972. The case culminated in acquittal of the deceased. Alimul Kadar alias Dhil Dhil launched a prosecution under Section 307 of the Indian Penal Code against the deceased which was pending on the date of the occurrence. The accused were at logger-heads with the deceased on account of his acquittal in the murder case because of the pendency of other criminal cases between them, as such, they were looking for an opportunity to take revenge against him. On 17th November, 1981 at about 9.30 p.m., while the deceased was returning home from Mahuli Bazar in the company of Sirajul Haq and Jabbar (who were also the residents of village Chhitahi) and reached near ‘Chhoti Masjid’ in village Chhitahi, the accused appellants Rafi Ullah, Alimul Kadar alias Dhildhil, Rafi Ahmed and Sami Ullah, who lay in wait for the arrival of the deceased, emerged from the west of the mosque, surrounded him challenged the deceased and Rafi Ullah fired at him by means of Katta, which hit him in the abdomen. On an alarm being raised by the deceased, many people of the locality arrived at the spot as a result thereof, all the four accused fled away. The accused persons were recognized by his two companions and other villagers also in the electric light which was burning near the Mosque.

5. A First Information Report of the incident, Ext. Ka 1 was lodged by the victim Mohammad Haroon himself at the Police Station Mahuli under Section 307 of the Indian Penal Code at 22.50 p.m. on 17.11.1981 vide chick F.I.R. Ka 4 against the accused persons.

6. The injured was taken to the Primary Health Centre Nath Nagar where his injuries were examined by the Medical Officer Sri A.K. Verma at 11.45 p.m. He found the following injuries on the body of the injured Haroon.

(i) Four lacerated wound of .5 cm x .5 cm x skin deep each in the area of 4 cm x 3 cm on the left side of abdomen 1 cm. Lateral and below from umblicus. Bleeding present.

(ii) Lacerated wound of .5 cm x 5 cm x skin deep on right side of abdomen 7 cm below and Lateral from umblicus. Bleeding present.

(iii) Lacerated wound of .5 cm x .5 cm x skin deep on anterior iliac spine of left iliac fossa. Bleeding present.

Injuries are caused by fire-arm weapon and are kept under observation till X-ray from District Hospital, Basti. Duration about fresh.

7. While the accused was being carried to the District Hospital for X-ray and further treatment, he succumbed to his injuries on the way to the hospital. Sri Vijay Shanker