S. Ratnavel Pandian, J. - (1.) The above appeal is preferred by the State of Uttar Pradesh challenging the correctness of the judgment dated 27-8-79 rendered by the Allahabad High Court in Criminal Appeals Nos. 1799 and 1800 of 1979 along with Referred Case No. 13 of 1979 allowing the appeal preferred by both the respondents and rejecting the reference made under Section 363 of the Code of Criminal Procedure for confirmation of the sentence of death imposed on the respondents. At the outset, it may be mentioned that the first respondent, namely, Vinod Kumar alias Channi is admittedly stated to have died. During the pendency of this appeal, none of the relatives of the deceased, Vinod Kumar has applied for leave to continue the appeal within 30 days of the death of Vinod Kumar as contemplated under Section 394 of the Code of Criminal Procedure. Hence the appeal as against Vinod Kumar abates. Therefore, we are now called upon to decide this appeal only with reference to the second, respondent, namely Udai Bhan Singh.
(2.) The allegations on the basis of which both the respondents took their trial are that on 25th April 1978 at about 9.15 p. m. in front of the shop under the name and style ' Mahesh Dairy ' situated in House No. 128/63, 'C' Block, Kidwai Nagar within the limits of Babu Purwa Police Station, Kanpur these two respondents along with Darshan Singh (since acquitted by the trial Court which acquittal was not challenged before the High Court) and Asha Khatik (who has been absconding) in furtherance of common intention caused the death of Suresh Nath Mehrotra and Bhola Nath, in that Vinod Kumar fired at the deceased Bhola Nath and Suresh Nath and Udai Bhan Singh fired at Suresh Nath with their respective pistols as a result of which both the deceased died. The brief facts of the case which led to the filing of this appeal can be stated as follows:
(3.) The deceased Bhola Nath was the father of the deceased Suresh Nath and PW 1, Naresh Nath and PW 4, Dina Nath. They had a shop known as 'Mahesh Dairy'. The place where the shop was situated was in a fairly congested locality of Kanpur. Both the deceased, PWs 1 and 4 were living in the same colony. On the ill-fated day, while PWs 1 and 4 were transacting business at their shop, the deceased were sitting in front of the shop listening to a transistor radio. The respondent Udai Bhan Singh accompanied by a stranger came there and asked for a bottle of Gold Spot. The other man who accompanied him took two bottles of Gold Spot and both of them started drinking the same. By that time, the respondent Vinod Kumar who came there accompanied by Darshan Singh exhorted that Suresh Nath should be finished since he got Vinod Kumar implicated in a criminal case and also appeared as a witness in that case. At this exhortation, all the four pulled out their country made pistols. Respondent, Udal Bhan Singh fired at Suresh Nath. Thereupon, Bhola Nath pounced upon the companion of Udai Bhan and caught hold of the barrel of the pistol. No sooner Bhola Nath did so, Vinod Kumar fired at Bhola Nath killing him on the spot. The injured Suresh Nath started running away by pressing his wound inflicted on his abdomen to save himself. By the time he reached in front of the nearby firewood shop of one Babu Lal all the four assailants got hold of him. Thereupon both the respondents fired one shot each at Suresh Nath who on receipt of the gun shot injuries succumbed to the injuries and fell down on the ground. A number of persons rushed to the scene of occurrence. All the four assailants in order to scare away the witnesses fired some more shots in the air and went back towards 'Mahesh Dairy'. One of the accused who came with Udal Bhan Singh brought a tempo parked nearby and all the four made good their escape by getting into the tempo. All the shopkeepers got panicky and closed their shops. According to prosecution, there was sufficient light in the scene of occurrence, shed from the street lights as well as electric lights fitted in the nearby houses. The eye-witnesses to the occurrence are PWs 1 and 4.;