JUDGMENT :

Mohd. Aslam, J.

1. Heard Ms. Prachi Trivedi, learned counsel for applicant No.3, Sri Dharm Trivedi, learned counsel for appellant No.4 as well as Sri Umesh Chandra Verma, learned Additional Government Advocate for State of U.P. and perused the record.

2. This criminal appeal is preferred on behalf of the appellants (1) Ram Shankar, (2) Gokaran Shukla, (3) Jageshwar, (4) Sabit, and (5) Mukaddar under Section 374 (2) Cr.P.C. against the impugned judgment of conviction and order of sentence dated 27.06.1984 passed by learned Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Sessions Trial No. 168 of 1984 (State of U.P. Vs. Ram Shanker and 4 others), arising out of Case Crime No. 146 of 1981, Police Station-Dhaurahra, District-Lakhimpur Kheri, whereby the appellants were convicted for offence punishable under Section 302/149 Indian Penal Code (in short "I.P.C") and were sentenced to undergo imprisonment for life, they were also convicted for offence punishable under Section 148 I.P.C. and were sentenced to undergo rigorous imprisonment for one year, also convicted for offence punishable under Section 307/149 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and they were also convicted for offence punishable under Section 449 I.P.C. and were sentenced to undergo rigorous imprisonment for eight years, further convicted for offence punishable under Section 323/149 I.P.C. and were sentenced to undergo rigorous imprisonment for one month. It was further directed that all the sentences shall run concurrently.

3. During the pendency of appeal, appellant no.(1) Ram Shankar, (2) Gokaran Shukla and (5) Mukaddar died and the appeal in respect of them was dismissed as abated vide order dated 29.09.2021, now the present appeal survives only against appellant no. (3) Jageshwar and (4) Sabit.

4. In brief, the prosecution case is that informant Devi Charan Mishra (PW-1) son of Ram Swaroop Mishra, resident of village Shekhan Purwa, Police Station-Dhaurahra, District- Lakhimpur Kheri lodged the first information report on 06.07.1981 at 7.00 a.m. at Police Station- Dhaurahra alleging therein that he was living with his cousin Lalji Prasad son of Santram in the same house. His second marriage took place about 12 years ago with Vidya, daughter of Babu Ram Shukla, resident of village Murasa, Police Station- Mitauli. His wife Vidya was a lady of easy virtue on account of which his relation with her was not good and she parted company with him and was living at her paternal house. It is also alleged that due to this his father-in-law, brother-in-law Ram Shankar and others had suspicion that Lalji Prasad and his wife Smt. Ram Shree were behind all this trouble so that they made repeated unsuccessful attempt to persuade Devi Charan to separate himself from Lalji Prasad. One year before the incident, his wife had also exhorted that as long as Lalji and his wife would not die or be killed she would not come to her matrimonial home. His wife Vidya had developed illicit relation with accused Sabit and Mukaddar, who were living in the neighborhood, and on account of this unholy activity the aforesaid accused had exchange of words with Lalji Prasad. In the night of 5/6.07.1981 he and his cousin Lalji Prasad were sleeping in the courtyard after taking dinner and his sister-in-law (Bhauji) Ram Shree, niece Shravan Kumari and nephew Dinesh Kumar were sleeping on the terrace and his another brother Shrikant and his servant Arjun Lodh (PW-3) were sleeping in the western side of the same courtyard. A lantern (lamp) was burning in the courtyard (ANGAN). In the mid of night, informant woke up and sat down on CHAUKI and at around 12:30 hrs. in the night, 5-6 persons infiltrated from the north side of TATIHAR (thatched) gate flashing torches, thereupon, informant accosted them, then the miscreants commanded him to sit quietly. Then he saw in the flashes of torch that his brother-in-law Ram Shankar armed with gun, Shyam Bihari Shukla arme