JUDGMENT :

GHANDIKOTA SRI DEVI, J.

1. As per report of the Chief Judicial Magistrate, Fatehpur dated 14.09.2018 appellant no.2 Wassan son of Wasiq Husain has died during pendency of this appeal and hence this appeal is dismissed as abated qua appellant no.2 Wassan son of Wasiq Husain.

2. In the present appeal, in all five appellants namely Tassan (A1), Wassan (A-2), Abbas (A-3), Udai Bhan (A-4) and Jhalla Yadav (A-5) have challenged the judgment and their conviction and order of sentence dated 30.08.1986 passed by the learned Additional Sessions Judge, Fatehpur in S.T. No. 20 of 1985 (State Versus Tassan and others), pertaining to P.S. Kishanpur, District-Fatehpur. By the impugned judgment and order, the learned Trial Judge, Fatehpur had convicted the appellants namely Wassan (A-2), Abbas (A-3), Udai Bhan (A-4) and Jalla Yadav (A-5) under section 148 I.P.C. and sentenced them to undergo rigorous imprisonment for a period of one year and fine of Rs. 1000/-each, in default of payment of fine, they were further directed to undergo rigorous imprisonment for a period of three months each. The appellant Wassan (now deceased) was further sentenced to undergo rigorous imprisonment for life for the offence under section 302 I.P.C. The appellants Tassan, Abbas, Udai Bhan and Jhalla Yadav were further convicted under Section 302 I.P.C. read with section 149 I.P.C. and were sentenced to undergo imprisonment for life. However, appellant Tassan was not held guilty of the offence under Section 404 I.P.C. and he was acquitted of the same. All the sentences were directed to run concurrently.

3. The facts of the prosecution case as mentioned in the written report, may be summarized as under:-

4. There had been a long drawn enmity between the deceased Bramha Dutt @ Kallu and accused-appellants, all the residents of village Silmi within the circle of P.S. Kishanpur, District-Fatehpur. Various criminal cases were pending and faught between the parties earlier, including the cases under Sections 323, 324, 325, 395, 397 I.P.C. and also the proceeding under Sections 107/117 Cr. P.C. In this hostile backdrop, it was alleged that the then District Magistrate-Fatehpur vide order dated 19.09.1984 had suspended the licence of Brahma Dutt @ Kallu and accordingly issued show cause notice, calling upon him to file his written statement if any, within a period of 15 days as to why his licence of gun would not be cancelled. In the written report, it was alleged that for doing pairivi of the said cancellation proceeding, Brahma Dutt @ Kallu on 26.10.1984 along with Vishwanath, Jagdish and Rameshwar Prasad was going to the office of the District Magistrate, Fatehpur from their village Silmi. Before going to District-Fatehpur, they had planned to go to village Nihalpur to consult the person whose licence of gun had already been cancelled by the District Magistrate. When they could not meet the said person, Brahma Dutt @ Kallu and his other three associates came out from village Nihalpur and at about 9.30 A.M. when they reached near the bridge of the canal they saw that all the accused-appellants including Assan (already died during the trial) on the eastern side of Khaga Kishanpur road were sitting under a mango tree by the side of the road. The deceased Assan was having D.B.B.L. gun, appellants Abbas, Jhalla and Wassan were armed with S.B.B.L. guns, Udai Bhan was having Tamancha and appellant Tassan was armed with Lathi. When Brahma Dutt @ Kallu along with his associates reached near about 7-8 paces before the bridge of the canal and started waiting for the bus to the Fatehpur city, then the deceased appellant Wassan fired with his gun which hit Brahma Dutt @ Kallu and as a result, he fell down. Then the appellants Tassan and Jhalla Yadav exhorted stating that “Maaro Saalon Ko Bachkar Bhag na pave”, to which all the accused-appellants started firing recklessly with their guns and ran towards Brahma Dutt @ Kallu and his associates. His associates Vishwanath, Jagdish a