JUDGMENT :

VIRENDRA KUMAR SRIVASTAVA, J.

1. Both the aforesaid appeals have been preferred against the judgment and order dated 25.05.2004, passed by Additional District and Sessions Judge, F.T.C. Court No. 4, Hardoi, in Sessions Trial No. 499 of 2002, arising out of Case Crime No. 92 of 2001, P.S. Pachdevra, District-Hardoi, whereby the appellants-Nabi Sher and Nabi Hasan of Criminal Appeal No. 1324 of 2004 and appellant-Shakir Ali of Criminal Appeal No. 1330 of 2004 have been convicted and sentenced for five years rigorous imprisonment with fine of Rs. 5000/- each for offence under Section 307 read with 34 I.P.C.

2. Since both the above said criminal appeals have been preferred against the aforesaid judgment and order, both appeals have been heard jointly and are being decided by common judgment.

3. The prosecution case, in brief, is that Shakir Ali (PW-1), son of Shakkar Ali (PW-2), was resident of Village-Chandpur, P.S. Pachdevra, District-Hardoi. The appellants-Nabi Sher and Nabi Hasan son of Sitaram were also resident of same village, but before two years of the occurrence, they had migrated to Village-Angwa, P.S. Sahabad, District-Hardoi. The appellant-Shakir Ali is brother-in-law (Jija) of appellant-Nabi Sher. There was a previous enmity between Nabi Sher and Shakir Ali (PW-1) as criminal case was lodged by the appellant-Nabi Sher for causing grievous hurt against Shakir Ali (PW-1).

4. On 19.09.2001, Shakil Ali (PW-1) was sitting in his village near the house of one Rajendra, situated towards southern side of village and Deshraj son of Ramdin Kushwaha, Bhaiya Lal son of Buddhi Lal Pal and Ganga Singh son of Taule Kushwaha were also present there. Meanwhile, at about 12:00 p.m. at noon, the appellants-Nabi Sher, Nabi Hasan and the appellant-Shakir Ali (hereinafter referred to as appellants) along with two unknown persons came there with illegal arms, with intention to cause death and due to previous enmity, they fired fire around at Shakir Ali (PW-1). Shakir Ali (PW-1), to save his life, fled away from the place of occurrence and reached Village-Nagla Hussain from where Ram Kumar Telli, resident of Village-Nagla Hussain and one Chhote Bhaiya Singh, resident of Village-Pakda, took him (PW-1) via Kath (town) to District Headquarter-Sahanjahapur and therefrom to Primary Health Centre Sahabad, where he (PW-1) was given first aid treatment and thereafter he was carried to District Hospital, Hardoi for medical treatment. On hearing the noise and receiving the information, Shakkar Ali (PW-2) who was present at his house, reached at the place of occurrence and was told by people, present on the spot, that his son, Shakir Ali (PW-1) received fire arm injuries, shot by the appellants and had fled away from the place of occurrence. Shakkar Ali (PW-2) rushed to police station-Pachdevra and lodged a first information report (Ext.Ka-1) (in short F.I.R.) at 6:45 a.m. On 20.09.2001. The investigation of the case was entrusted to S.I. Shivpal (PW-4).

5. Dr. J.L. Gautam, Emergency Medical Officer, Civil Hospital, Hardoi, examined the injuries of Shakir Ali (PW-1), who was brought by Ram Kumar resident of Village-Nagla Husain, P.S. Pachdevra, on 19.09.2001 at 11:30 p.m. According to him, the following injuries were found on the body of the injured:

“(1) Firearm wound of entry size 2.0 cm x1.0 cm x depth not proved present on abdomen 6.0 cm above umblicus at 12”0 clock margin inverted lacerated.

(2) Firearm wound of exit size 5.0 cm x 3.0 cm x communicating with injury no. 1 present on left side of abdomen, 6.5 cm away from umblicus at 3’0 clock margins everted, lacerated illegible.

(3) Black scabed depressed abraded wound 0.3 cm in diameter x depth not proved present on left arm middle part.

(4) Multiple Black scabed depressed abraded wounds size 0.3 cm in diameter x depth not probed to 2.00 cm x 0.3 cm x muscle deep gutter wound present on right leg from knee to ankle joint dried blood clots present. Soft scab over wound tissues present.”

6. Accord