Hon’ble Shailendra Kumar Agrawal, J.—This Criminal Appeal has been filed by the accused/appellant Kamlesh challenging the impugned judgment and order dated 5.7.1994 passed by Special Judge (D.A.A.), District-Jhansi in Sessions Trial No. 23 of 1993 (State of U.P. v. Brindavan and others); Crime No. 22 of 1993, Police Station Moth, District Jhansi, whereby accused/appellant was convicted and sentenced under Section 394 read with Section 397 IPC with seven years’ rigorous imprisonment and under Section 302 read with Section 34 IPC with life imprisonment and both the sentences were ordered to run concurrently.

2. The brief facts of the case are that a written report Ex. Ka-1 scribed by complainant Vinod Kumar (PW-1) himself was lodged at Police Station Moth on 31.3.1993 at 5.45 a.m. against unknown persons alleging therein that on 31.1.1993 he alongwith his father Sonelal (driver) was carrying the goods in truck No. UMO 9780 from Madras to Oraiya and when they reached near village Amara at Jhansi - Kanpur Road at about 5.00 a.m., the wheel of his truck got punctured. The moment when the wheel was being changed, four miscreants reached there, out of them two were armed with Tamancha, one was armed with spade (Gainti) and the last one was armed with iron rod, and started beating them and one miscreant fired on Sonelal, due to which he got injured. Rs. 30,000/- and two wrist watches (Make Alvin and Jyco) which were kept in black sweater, were also snatched. Another truck bearing registration No. UP-78B-1796 of the same company accompanying with him was also parked there, in which also loot was committed and its occupants beaten up. The injured Sone Lal was brought to Medical Hospital, Moth, where he died. He also alleged that he and his companions of another truck can recognize the looted articles as well as the miscreants if they were produced before them.

3. On the basis of this written report Ex. Ka-1, formal chik report Ex. Ka-19 and G.D. Ex. Ka-29 were prepared on 31.1.1993 at 5.45 a.m. and the case under Sections 394/302 IPC was registered against unknown persons.

4. Thereafter, the Investigating Officer recorded the statements of the witnesses and inspected the place of occurrence and prepared site plan Ex. Ka-14. He also prepared Panchayatnama of the dead body of Sonelal, the letters to C.M.O. and R.I., also prepared challan lash, photo lash and sample of seal, which are Ex. Ka-7 to Ka-13 respectively. Empty cartridge, blood stained and simple earth were also taken into possession and the memos were prepared as Ex. Ka-15 and Ka-16 respectively.

5. During investigation, complicity of accused persons was found and on the information of informer, accused Brindavan and Kamlesh sons of Guman were arrested in the night of 31.1.1993/1.2.1993 brought to the Police Station and they were confined in lock up. Entry in this regard was made in G.D. Ex. Ka-17. Nothing was recovered from possession of these accused. Involvement of two co-accused namely Kamlesh son of Kishori (appellant) and Balram was also found and they surrendered in the Court on 15.2.1993 and 18.2.1993 respectively.

6. The autopsy was conducted on the corpse of Sone Lal by Dr. A.K. Saxena, Medical Officer on 1.2.1993 at 3.30 p.m. and the following ante-mortem injuries were found:

1. Incised wound 3cm x 1cm bone deep over left side face, 6 cm infront of fragus of left ear.

2. Incised wound 2cm x 0.5cm x muscle deep over left side neck, 7 cm from injury No. 1.

3. Incised wound 2cm x 0.5cm x bone deep over outer 1/3 of left eye brow.

4. Incised wound 7cm x 1.5cm x bone deep, vertically over left side scalp 9 cm above medial end, left eye brow, under observation, there was fracture of left parietal bone.

5. Incised wound 5cm x 1cm x 13cm deep, vertically over left side scalp, 7cm from top of the ear.

6. Incised wound 6cm x 1cm x bone deep, horizontally over scalp, occipital region, 7cm from top of ear.

7. Gun shot wound of entry 6cm x 3cm x muscle deep over outer sid