JUDGMENT :

1. Heard learned counsel for appellant and learned Additional Government Advocate for the State and perused the record.

2. Challenge in this appeal is to the judgment dated 30.06.2011, passed by the Additional District and Sessions Judge, Court No.5, Rae Bareli, passed in Sessions Trial No.,135 of 1998, arising out of Case Crime No.200 of 1997, under Sections 302,307 I.P.C. relating to Police Station Lalganj, District Rae Bareli, whereby the appellants Devesh Kumar @ Neeraj Dixit and Baijnath Singh have been convicted under Section 302/34 I.P.C. and under Section 307/34 I.P.C. and sentenced under Section 302/34 I.P.C. for life imprisonment and fine of Rs.10,000/-and under Section 307/34 I.P.C. for rigorous imprisonment for 10 years and fine of Rs.2,000 with default clauses.

3. The prosecution story as emerges from the record of the the learned trial court is that a written report was filed by informant Ram Shanker on 17.9.1997 at Police Station Lalganj, District Rae Bareli at about 10.45 a.m. stating therein that at about 10.00 a.m., his uncle Lallu Yadav, Ramesh Pratap and Dinesh Pratap were supervising construction of foundation of some building on a land purchased by them from one Suresh Singh of Pandepur. At that time appellants Neeraj Dixit and Baijnath Singh arrived on the spot and took him and his uncle Lallu towards the shop of one Ram Bahadur. Appellant Baijnath Singh enquired as to why the bricks have been stacked on the land and also that they cannot construct a house on that land. It was further stated that his uncle Lallu Yadav informed them that the land on which foundation was being laid, has been purchased by them, on which on the instigation of Baijnath Singh, appellant Neeraj Dixit took out a country made pistol and fired at the informant hitting him in his abdomen. He fired a second shot at his uncle Lallu Yadav, who after being hit died on the spot and his dead body was lying there.

4. On the basis of afore mentioned information, an F.I.R. (Ext.Ka-15) was registered at Police Station Lalganj, District Rae Bareli at Case Crime No.200 of 1997, under Sections 302,307 I.P.C. and investigation of the same was entrusted to Station House Officer Sri S.N.Rai.

5. The informant, who was badly injured, was medically examined at P.H.C. Lalganj on the same day i.e. 17.9.1997, at 11.25 a.m. and following injury was found on his person :

Fire arm wound measuring 5 cm x 2 cm, depth could not be measured, margins inverted , blackening and tattooing present around the wound and tattooing present in an area of 15 cm x 10 cm on the lateral aspect of left side of abdomen. Fresh blood was also found present with smell of gun powder. However no wound of exit was present and the patient was kept under observation.

It is also mentioned in the injury report that the general condition of the patient was not satisfactory and his pulse rate was 100 per minute and the blood pressure was 100/70 mg. As per the opinion of the doctor, injury was fresh and was caused by some fire arm. Patient was kept under observation and was advised X-ray of the abdomen.

6. The Investigating Officer arrived at the spot and got the inquest report (Ext.Ka-7) and other necessary papers prepared for the purpose of post mortem through Sub Inspector Sohan Lal Shukla and sent the dead body for post mortem. He also inspected the spot and collected the empty cartridge and bullet from the spot and also prepared a memo of the same (Ext.Ka-5). He also collected sample of blood stained soil from the spot and prepared a memo of the same (Ext.Ka-6).

7. Post mortem, on the dead body of deceased Lallu Yadav was conducted on 18.09.1997 at about 11.00 a.m. by Dr. L.C.Srivastava at District Hospital, Rae Bareli.The body of the deceased was found about one day old and of average built. Rigor mortis was present from upper to lower extremities. Following ante mortem inj