(Delivered by Hon'ble J.J. Munir, J.)

1. This criminal appeal is directed against a judgment and order of Sri Rajendra Babu Sharma, the then Ist Additional Sessions Judge, Baghpat dated 9th July, 2012 in Sessions Trial No.167 of 2008 (State Vs. Bablu and others) convicting the appellant Rakesh of an offence punishable under Section 302 read with Section 34 IPC and sentencing him to suffer imprisonment for life with a fine in the sum of Rs.10,000/- attended with a direction that in the event of default in the payment of fine, the appellant would have to undergo a further term of one year rigorous imprisonment.

2. It may be mentioned at the outset that the present appeal was filed from Jail by the appellant through the Senior Superintendent, District Jail, Meerut in the prescribed proforma dated 19.12.2012 forwarded by the Senior Superintendent along with a covering memo addressed to the Deputy Registrar of this Court. The appeal was belated. This Court by an order dated 15.01.2013 condoned the delay, admitted the appeal to hearing and summoned the record.

3. Heard Sri Raj Kumar Dhama, learned counsel for the appellant and Sri Saghir Ahmad, learned A.G.A. on behalf of the State.

4. It must be placed on record here that this appeal was heard during a single stretch of hearing on 17.03.2018 and judgment was reserved.

5. It is also required to be said at the outset that three accused were arraigned at the trial, to wit, Bablu son of Pem Nath, Nandu son of Jasveer and Rakesh son of Dharmveer. Bablu was murdered pending trial, whereas Nandu died pending trial a natural death. Thus, the trial proceeded against the present appellant Rakesh alone leading to the impugned judgment of conviction.

6. The facts giving rise to the present appeal of the earliest account are best given out by the First Information Report. It is stated by the first informant, one Kanwarpal son of Ratan Singh that the informant was a native of Village Dhikauli. The sister of one Bablu son of Prem, another native of the same village is said to have eloped with one Mukesh, a native of Bijraul. According to the informant, his brother Omveer (the deceased) was frequented by Mukesh, who had eloped with Bablu's sister, on account of which Bablu harboured ill will against the deceased. In the evening hours of 29th September, 2007 the informant and his brother Omveer were proceeding to their Gher carrying meal for their father. His brother Omveer was walking a few paces ahead of the informant; the two, as they reached the house of one Satyapal @ Ballam son of Nanak Harijan, Bablu son of Prem, Rakesh son of Dharmveer (the appellant) and Nandu son of Jasveer waylaid the informant's brother wielding country-made pistols, where each of them in order to do his brother Omveer (now deceased), to death, opened fire, which hit Omveer. It is said that on hearing Omveer cry out, witnesses Devendra son of Sheeshpal, Ranpal son of Risal, Satish son of Mahak Singh arrived at the scene of occurrence and witnessed the incident. Bablu and others fired indiscriminately, which led the gathered multitude into a state of commotion and stampede while residents of the locality closed their doors out of fear and while some were peeping through their windows; the accused still firing to scare, brandishing their weapons, moved away. The occurrence is said to have taken place at 17:30 hours. The informant mentions that his brother Omveer was injured in consequence of the assault, and, while he along with others were carrying him for medical aid to Meerut, he died on way. With the informant saying further that his brother's dead body was placed in his Gher he requested that his report may be lodged for necessary action.

7. On the basis of a written report, Ex. Ka-1, by the informant, case crime no.180 of 2007 was registered against the accused Bablu, Rakesh (appellant) and Nandu for the offence under Section 302 IPC, which was entered in the General Diary as G.D. Entry No.48 at 20.50 hou