By the Court.—Heard Sri V.P. Srivastava learned senior counsel assisted by Sri Aishwini Kumar Srivastava who states that he is appearing for the appellant No. 3-Pappu @ Prem Prakash and for the appellant No. 1, Sri Harish Chandra learned counsel is appearing.

2. Appellant No. 2-Bajrangi Prasad and appellant Mahendra Pandey who had filed separate Criminal Appeal No. 2097 of 1981 which is connected with the present appeal, have since expired therefore, their appeal has been abated by this Court vide order dated 9.12.2005 which is on record in the order sheet of the case.

3. The present appeal is being argued on behalf of appellant No. 1 Ravindra Pande and appellant No. 3 Pappu Srivastava alias Prem Prakash.

4. Present appeal has been filed against the judgment and order dated 15.9.1981 passed by VI-Additional Sessions Judge Gorakhpur in Sessions Trial No. 100 of 1979 whereby the appellant No. 1 has been convicted and sentenced to undergo imprisonment for life under Section 302 IPC and to undergo imprisonment of five years for the offence under Section 307 read with Section 34 IPC and the appellant No. 3 has been convicted and sentenced to undergo imprisonment for life under Section 302 IPC read with Section 34 IPC and to undergo imprisonment of five years for the offence under Section 307 read with Section 34 IPC. All the sentences were directed to run concurrently.

5. It is contended by learned counsel for the appellants that the incident is alleged to have taken place on 9.12.1978 at 10.30 a.m., regarding which First Information Report was lodged on the same day at 11.15 p.m. at police station Rajghat district Gorakhpur and the distance of the place of occurrence from the police station is said to be 3 Kms.. Pursuant to lodging of the F.I.R. investigation was conducted which resulted in filing of charge-sheet and as the appellants pleaded not guilty, they were put to trial.

6. Learned counsel for the appellants contends that the first informant of the case, Ram Prasad, is father of the deceased Jagdish and as per prosecution version when the deceased had gone out to have tea on 9.12.1978 at 10.15 a.m. from his house to a nearby shop, he was assaulted by the four appellants with knife and when the younger son of the informant namely Harish Chandra went to save his brother, accused Mahendra Pandey hurled bomb upon him, in which he was injured and subsequently Jagdish son of the informant died in which incident his brother Harish Chandra received injuries.

7. Learned counsel for the appellants contends that in the First Information Report four persons were named namely Pappu Srivastava son of unknown r/o Mohalla Balkati, Ravindra Pandey, Bajrangi and Mahendra Pandey. It is contended that when name of Pappu Srivastava was taken in the Court, he was addressed as Pappu Srivastava @ Prem Prakash for the first time therefore, identity of appellant No. 3 is highly doubtful. It is next contended that only general role has been assigned to him as per the First Information Report while in the statement recorded under Section 161 Cr.P.C. and that in the statement recorded in the Court shows that he was said to be armed with Lathi and no overt act has been assigned to him of assaulting any person. It is next argued that there is no motive assigned to the appellant No. 1 to have committed the alleged offence apart from the fact that he used to remain in company of the deceased and his brother and the allegation of assaulting the deceased by knife has been made on Ravindra Pandey and Bajrangi and Mahendra is said to have hurled bomb on the injured. The prosecution examined ten witnesses P.W.-1 father of the deceased and first informant of the case who is said to be an eye-witness, P.W-2 Sri Narain Pandey Scribe of the F.I.R. who is also said be an eye-witness, P.W.6 Harish Chandra injured brother of the deceased who is also said to be an eye-witness and the remaining are the formal witnesses namely P.W.-3 Constable Ramdhir Singh who h