JUDGMENT :

Surya Prakash Kesarwani, J.

1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Anurag Shukla, learned counsel for the appellant Nos.1 and 2, Smt. Manju Thakur, learned A.G.A. for the opposite party/ State and Sri Jitendra Shankar Pandey, learned counsel for the informant.

2. This appeal has been filed praying to set aside the judgment and order dated 09.02.1996 in Session Trial No.167 of 1993 passed by the Sessions Judge, Mathura convicting the accused Rekhpal for offences under Sections 302, 307/34 and 323/34 I.P.C., accused Vinod for offences under Sections 302/34, 307/34 and 323 I.P.C. and the accused persons Pramod and Manoj under Sections 302/34, 307/34 and 323/34 I.P.C. The accused Rekhpal had separately filed a Criminal Appeal No.575 of 1996 (Rekhpal vs. State of U.P.), which was abated by order dated 03.04.2019 on account of his death. Present criminal appeal has been filed by three accused persons namely Vinod son of Rekhpal, Pramod son of Ragghi @ Raghubir and Manoj son of Natthi. During pendency of the present appeal, the accused appellant No.3 Manoj died and as such by order dated 09.12.2019, the appeal was abated qua the accused appellant Manoj. Thus, the present appeal survives and is being pressed by learned counsel for the appellant only for the appellant Nos.1 and 2, namely Vinod son of Rekhpal and Pramod son of Ragghi @ Raghubir.

Facts:-

3. Briefly stated facts of the present case are that according to the prosecution, on 17.10.1992 at about 03:00 P.M. the injured eyewitness-PW-1 Bhikampal Singh son of Raj Pal Singh, the deceased Om Prakash, the injured eyewitnesses PW-2 Shespal Singh son of Sanwal Singh and the injured eyewitnesses PW-3 Munesh Pal @ Muniya son of Sanwal Singh were returning to their homes after working on their respective agricultural fields and when they reached on public way near the agricultural land of one Jimipal, then the accused Rekhpal with DBBL gun, his relative Manoj son of Natthi with country-made pistol, Pramod son of Raghubir @ Ragghi with country-made pistol and lathiand Vinod son of Rekhpal came on a red-colour bullet motorcycle which was being driven by the accused Vinod son of Rekhpal. Motorcycle was stopped near the aforesaid victims. Accused Vinod exhorted to take revenge and to beat. Pramod started beating Sanwaliya and when the victims ran to save Sanwaliya, then Vinod snatched country-made pistol from Pramod and fired at Munesh Pal @ Muniya. Subsequently Rekhpal fired with his DBBL gun at the back of Om Prakash. Consequently Om Prakash died on spot. Hearing the fire sound when people started coming on the spot, all the four accused persons fled away.

4. In support of the case, the prosecution examined three eye-witnesses, namely Bhikampal Singh PW-1, Shespal Singh PW-2 and Munesh Pal @ Muniya PW-3. Formal witnesses, i.e. PW-4 Dr. D.S. Verma who medically examined the injuries of Munesh Pal son of Sanwal Singh, PW-5 Investigating Officer Amarjit Singh, S.H.O. Narhauli, Mathura, PW-6 Head Constable Ramesh Chandra who entered the First Information Report, P.W.-7 Second Investigating Officer Sri Umesh Kumar Singh, S.H.O. P.S. Kagarol Agra and P.W.-8 Dr. R.C. Sharma who conducted postmortem on the body of Om Prakash (deceased), were examined by the prosecution. Thus, the prosecution examined three eyewitnesses and five formal witnesses. Statements of accused persons under Section 313, Cr.P.C. were recorded. From the defence side, three witnesses i.e. DW-1 Dr. R.B. Sharma who examined injuries of the accused persons Rekhpal Singh and Vinod, DW-2 Matindra Bhardwaj, surgeonwho examined injuries of Shakuntala wife of Rekhpal Singh and DW3 Ladan Singh, were examined. Learned Trial Court heard the matter and convicted all the four accused persons, namely Rekhpal Singh, Vinod, Pramod and Manoj awarding punishment as mentioned in the impugned judgment and order dated 09.02.1996. Aggrieved, the appellants herein have filed the present appeal.

Submissio