1. This appeal has been preferred against the judgment and order dated 3.9.1985 passed by the IV Additional Sessions Judge, Etawah, in S.T. No. 296 of 1983, State Vs. Ram Prakash and others, whereby the appellants have been convicted u/s 307/34 I.P.C. and have been sentenced to undergo R.I. for three years.

2. At the very outset, it is very relevant to mention that out of the three appellants, appellant no. 1, Ram Prakash, died and the appeal stood abated in respect of him on 11.12.2014. Out of the remaining two appellants, appellant no. 3, Gaya Prasad, took the plea of juvenility, during pendency of this appeal, on which this court vide order dated 9.9.2015 referred the matter to the Juvenile Justice Board, Etawah, with direction to conduct an enquiry in accordance with law after giving opportunity of hearing to the complainant side and to ascertain the age of the appellant Gaya Prasad on the date of the occurrence. The Juvenile Justice Board, Etawah, after recording statements of witnesses and giving due opportunity of cross-examination to the complainant party and also on the basis of medical examination report submitted its report dated 4.12.2015 to the effect that the age of the appellant Gaya Prasad was less than 18 years at the date and time of the occurrence.

3. As the appellant, Gaya Prasad, has been declared a juvenile, his case should be dealt separately. Accordingly, his file is hereby separated from the file of the adult appellant Sri Krishan.

4. Office is directed to take necessary steps for separation of the file of the appellant Gaya Prasad within two weeks and to send it to the Juvenile Justice Board, Etawah, for retrial. The learned Juvenile Justice Board is directed to proceed with it in accordance with law and if the circumstances show that the appellant Gaya Prasad was "mature enough" to understand the consequences of his act, to implement the amended provisions of Juvenile Justice Amendment Act, 2015 and to send it to the Children's Court.

5. Now the only surviving appellant in this appeal is Sri Krishan, who has been convicted and sentenced u/s 307 read with section 34 I.P.C.

6. Heard Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Ajay Kumar Pandey and Sri Sheel Kumar Dubey, learned counsel for the appellant and learned AGA. Perused the record.

7. Shorn of unnecessary details, the prosecution case in a nutshell is that in the intervening night of 3/4.4.1983 at about 12.00 P.M. when the complainant was sleeping on the wheat sacks which were kept loaded in the bullock cart, standing in front of the door of his house, four persons armed with lathi, spear and country made pistol reached there and pulled his quilt. The complainant woke up and asked, "Kaun Hai?" On this, Gaya Prasad (juvenile accused) shot fire on him by a country made pistol, he was carrying with him. The fire hit at the right hand and right side ribs of the complainant. On alarm being raised by him witnesses Gyani, Raghuvir and Ahbaran Singh, who were also sleeping nearby, reached there and challenged the assailants. Thereafter all the assailants ran away towards western side. All of them were identified by the witnesses in the moonlight and also in the light of a lantern, which was burning under the Chhappar. An F.I.R. was lodged about the incident naming only three assailants as Ram Prakash, Sri Krishan and Gaya Prasad. With regard to the fourth one it was stated in the F.I.R. that he was not known to the witnesses, however, he can be identified if he comes in front of them. The motive behind the incident as also mentioned in the FIR is that there was some dispute between the families of accused Gaya Prasad @ Malik and of the complainant on the issue of 'Vidai' of the sister of Gaya Prasad, who is the daughter-in-law of the complainant and the complainant's family was not inclined to take her with them (Vidai) due to her ill reputed character.

8. The report of the incident was lodged promptly on 4.4.1983 at 10.00 A.M. The