JUDGMENT :

Vikas Kunvar Srivastav, J.

1. The instant criminal appeal is against the judgment and order of sentence dated 25.05.1990 passed by the Additional Sessions Judge, Bareilly in Sessions Trial No.394 of 1987 (State Vs. Netram and Ors.), under Section 302 read with Section 34 of the INDIAN PENAL CODE , 1860, Police Station Aonla, District Bareilly, whereby the appellants were sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 of the INDIAN PENAL CODE , 1860.

2. The instant appeal was preferred by three convicted accused namely Netram, Naresh and Krishna Pal, but during the pendency of the appeal, appellant no.1 “Net Ram” and appellant no.3 “Krishna Pal” died. The appeal to their extent was abated vide order dated 23.07.2019. Presently, the appellant no.2 “Naresh” is the sole surviving appellant who is in jail since 19.08.2019.

3. Heard learned counsel Sri Udai Bhan Singh on behalf of the sole surviving appellant “Naresh” and learned Additional Government Advocate Ms. Arti Agarwal for the State.

Factual Matrix

4. Briefly stating the prosecution case as emerged from the first information report lodged on 17.05.1987 on the oral information of the incident given by the informant Ram Kumar S/o Bhawani Singh R/o Village Bahadurpur Gautiya about the incident dated 16.05.1987 at about 07:00 P.M. is that his father-in-law “Ram Charan” R/o Village Bhimlor came to his Village Bahadurpur Gautiya to return his bulls at about 05:00 P.M. He told that his maternal brother “Virendra Pal” R/o Village Baghaul came to his house, therefore, he had to go back home. The informant also accompanied his father-in-law i.e. Ram Charan (deceased) to meet Virendra Pal and they left the village Bahadurpur Gautiya proceeding to village Bhimlor, which was about one mile away from the village of the first informant. At about 07:00 P.M., when they reached infront of the shop of Nankoo, the accused/appellant Naresh, a native of the village Bahadurpur Gautiya of the first informant pounced armed with a country made pistol (tamancha). Seeing him, the father-in-law of the first informant (deceased) ran towards East, the accused “Naresh” chased him and from the East direction accused “Krishna Pal” also appeared armed with a country made pistol alongwith accused “Net Ram” with spear in his hand. Naresh and Krishna Pal both had fired one shot from their fire arms on the informant’s father-in-law (deceased Ram Charan) and the accused Net Ram inflicted a blow of spear on him. The deceased fell down screaming on the earth. The informant raised alarm for rescue in response to which Virendra Pal R/o Village Baghaul and Nankoo rushed to the spot of the incident from the shop of Nankoo but the accused persons fled away. When the informant alongwith other people gathered at the spot and reached near the victim “Ram Charan”, they found him dead. The motive to commit the crime as stated in the report is about 2 ½ years ago, the assailants had committed dacoity in the house of the deceased “Ram Charan” and a criminal case was pending wherein the statement of witnesses was to be recorded on 05.05.1987 but the accused persons got it adjourned and further date fixed was 20.05.1987.

5. The first information report of the incident was lodged in the morning of 17.05.1987 at about 06:30 A.M., the reason behind the delay in lodging the report has been explained in the first information report itself that the informant could not dare to go to the police station to lodge the report in the nig