Rajesh Tandon, J. : The appellants, namely, Puran, Chet Ram, Nanhey and Praveen are aggrieved by judgment and order dated 2nd September, 1983 passed in Sessions Trial No.150 of 1982 by special Judge, Additional Sessions Judge Nainital- convicting them under section 302/34, I.P.C They have been awarded life imprisonment- Therefore, they have come by way of appeal to this Court under section 378(2) of the Criminal Procedure Code.

2. During the pendency of this appeal, it is reported by the Chief Judicial Magistrate Udham Singh Nagar that the appellants No. 1 & 4, namely, Puran & Praveen have been died. Now, only the appellants' No.2 & 3, namely, Chet Ram & Nanhey are alive. Therefore, the appeal on behalf of appellants No. 1 & 4, namely Puran. &. Parveen, Stands abated and is dismissed. Now, we proceed with this case in respect of appellants No.2 & 3, namely, Chet Ram & Nanhey only.

Case-of the Prosecution :

3. On 28.9.1981 at about 6.30 p.m. Chhote (deceased), him wife Smt. Kamla Devi PW-1 and his son Madhav Singh PW-2 were returning from their tea shop situated. ,near. Jaspur Bus Stand. When they reached near the cycle repairing shop of Haji Modh. Usman PW3 situated in Mohal