Sudhir Agarwal, J. - (1.) THE two revisionists Nankau and Pappu Singh are aggrieved by judgment and order dated 26.02.1991 passed by Sri D.K. Srivastava, IVth Assistant Sessions Judge, Kanpur Dehat convicting them under Section 307 read with 34 IPC sentencing each of them to undergo rigorous imprisonment for 5 years and fine of Rs. 1,000/ -. In case of non payment of fine, both the accused have to further undergo simple imprisonment of one year. The aforesaid judgment has been confirmed by Appellate Court vide judgment dated 23.6.1992 passed by Sri A.K. Roopanwal, Special Judge, (D.A.A.), Kanpur Dehat dismissing revisionists' criminal appeal No. 10 of 1991.
(2.) THE prosecution story, in brief, was that on 24.8.1988, complainant Sheo Ratan Singh was sitting at his door of the house near about 7 P.M. along with Devendra Singh, Suresh Singh and Jai Singh. The two revisionists came alongwith one Sughar Singh. The revisionists were armed with Pharsa while Sughar Singh was armed with a country -made pistol. They started hurling abuses on the complainant and his brother Narayan Singh Pradhan and said that they would kill them. The complainant's nephew Saroj Singh son of Ram Pal Singh came out of his residence and attempted to stop accused from abusing, whereupon Sughar Singh with an intention to kill, fired from his country -made pistol upon the nephew of complainant as a result whereof he sustained injury on the face. Hearing the gunshot sound, people from nearby area rushed to the spot and in the meantime all the three accused ran away from the site. The report of incident was lodged at 2 A.M. at P.S. Sheorajpur on 25.8.1998. The case was registered and investigation was entrusted to S.I. Ranvir Singh, who visited the spot, prepared site plan and recorded statement of witnesses under Section 161 Cr.P.C. The Charge sheet was filed against Sughar Singh on 6.9.1988 and against the two revisionists on 28.10.1988. The revisionists accused were charged under Section 307 read with 34 IPC. The trial of Sughar Singh was separated from trial of the two revisionists. The prosecution examined five witnesses i.e. Sheo Ratan Singh PW1, Saroj Singh PW2; Devendra Sinch PW 3; Ram Shiromani Shukla PW 4 and S.I. Ranvir Singh PW5. The accused -revisionists, besides denying the charge, contended that they have been implicated falsely, did not adduce any other evidence. The Trial Court held them guilty and convicted vide judgment dated 26.02.1991 sentencing them with rigorous imprisonment for a period of five years under Section 307 IPC and also a fine of Rs. 1,000/ - each. The appeal preferred by revisionists was dismissed on 23.6.1992.
(3.) SRI R.K. Saxena, learned counsel appearing for accused revisionists contended that Section 34 IPC has no application in the case in hand and therefore, implicating accused -revisionists under Section 307 IPC read with Section 34 IPC is clearly illegal and illogical. He said that complainant's own case was that the two revisionists came armed with Pharsa but no injury is reported to be caused from Pharsa. Only Sughar Singh is stated to have fired with country -made pistol which, as alleged, he carried, and therefore, implication of revisionists is illegal.;