JUDGMENT :

1. Heard learned counsel for the appellants, learned AGA for the State and perused the record.

2. This appeal has been preferred against the order of conviction and sentencing dated 19.11.2003 passed by the Additional Sessions Judge, Court No.6, Sitapur in Sessions Trial No.689 of 1999 (State Vs. Ram Naresh and others) arising out of Case Crime No.187 of 1997, under Section 307 IPC, Police Station Ramkot, District Sitapur convicting the appellants Bhaggal and Ashok Kumar under Section 307 read with Section 34 IPC and sentencing to undergo rigorous imprisonment of 10 years each and Rs.5,000/-fine to each of the accused and to undergo six months simple imprisonment each in case of default of payment of fine.

3. During the pendency of appeal, appellant no.1, Bhaggal has died and the appeal in respect of appellant no.1, Bhaggal has been abated. Thus, the appeal survives only in respect of appellant no.2, Ashok Kumar.

4. In brief, facts of the case are that the informant Chandra Bhushan lodged an FIR on 17.08.1997 that the informant, his son Ram Gopal and Kalicharan alongwith Rakesh of his village had gone to purchase a buffalo. After seeing the buffalo of Devi Sahai Shukla when they were coming back and reached near the house of Gokaran Prasad Shukla at Village Arthana, Bhaggal, Ram Naresh, Anand and Ashok residents of village Arthana armed with country-made pistol reached and exhorted to kill them in revenge. Hearing this, Bhaggal fired upon his son from the country-made pistol with the intention to kill him which hit Ram Gopal and he fell down. After hearing hue and cries, the accused persons ran away towards their houses while firing from their country-made pistols. Several persons of the village have seen the occurrence and FIR was lodged.

5. Ram Gopal was medically examined by Dr. Ashok Agrawal, three firearm pellet injuries were found on the lower chest and upper abdomen and on left arm of the injured collar abrasion was also present. There was fresh bleeding from the wounds. Blackening and tattooing were not present.

6. After lodging the FIR, PW-7, investigating officer (IO) SI Umakant Upadhyay started investigation, recorded the statements, collected the oral and documentary evidences and submitted the charge sheet Ex.Ka-7 and Ex.Ka-8.

7. Following witnesses have been produced to prove the prosecution case:-

8. Following documentary evidences had been produced by the prosecution:-

9. Statements of the accused persons have been recorded under Section 313 CrPC in which they denied the allegations, evidence and charge. Accused Bhaggal stated that since he had testified himself against the informant, hence he has been falsely implicated. Accused Ram Naresh stated that he was the relative of Bhaggal, hence he has been falsely implicated. Accused Ashok stated that he was the real brother of Bhaggal, hence he has been falsely implicated.

10. In this case four accused were named in the FIR but only accused Bhaggal and Ashok have been convicted and sentenced. Rest two accused persons Ram Naresh and Anand have been exonerated and no appeal/revision has been filed by the State or the informant against the judgment and order of acquittal in favour of these two accused persons.

11. In this case PW-2, Kali Charan and PW-3, Sarvesh Kumar have completely not supported the p