JUDGMENT : By the Court Case called out in the revised list. None appears on behalf of the appellants to press this appeal. Record shows that this appeal is of the year 1988 and Shyam Singh, the sole appellant in this appeal is on bail. Record further shows that when this appeal was taken up for hearing on 25.08.2014, no one had appeared on behalf of the appellant on which this Court had passed the following order :- "The Chief Judicial Magistrate, Etawah in his report referred to in the office report dated 22.8.2014 has recorded that appellant Shyam Singh is not traceable and he is a history-sheeter. It has been stated that he has no property with him. However, the report of the C. J. M. Etawah does not reflect upon the proceedings if any initiated under Section 82/83 Cr. P. C. and the proceedings under Section 446 Cr. P. C. against the sureties in terms of the bail granted in favour of Shyam Singh under order of the Court dated 9.6.1990. Let the Chief Judicial Magistrate, Etawah initiate proceedings under Section 82/83 Cr. P. C. against the accused-appellant Shyam Singh with all promptness and similarly, he must initiate proceedings against the sureties under Section 446 Cr.P.C. without any delay. Office is directed to forward the relevant details of the sureties to the C. J. M. Etawah alongwith a copy of this order by 29.8.2014, so that there is no further delay in compliance of order of the Court. The matter shall be listed next on 17.9.2014, by which date Chief Judicial Magistrate, Etawah may submit his compliance report." When this matter was taken up for hearing today again, no one has appeared on behalf of the appellant to press this appeal. Report of Chief Judicial Magistrate, Etawah indicates that appellant-Shyam Singh is absconding for the last eleven years. He had left his village where he was residing at the time of filing of this appeal after selling his all movable and immovable properties. This appeal is of the year 1988; the appellant is on bail; more than two decades have already elapsed. Neither the appellant's counsel nor appellant himself are interested to dispose of this appeal. Faced with the aforesaid contingency, the question which arises before us is that whether we are bound to adjourn the matter in the absence of both the appellant or his counsel. Neither the appellant's counsel nor appellant himself are interested to dispose of this appeal. Faced with the aforesaid contingency, the question which arises before us is that whether we are bound to adjourn the matter in the absence of both the appellant or his counsel. Under identical circumstances of the Apex Court after a comprehensive analysis of previous decisions on the issue has distilled the legal position into six propositions in paragraph 19 of its judgment delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 : 19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2 That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3 That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;" 19.4 That it can dispose of the appeal after perusing the record and judgment of the trial court; 19.5 That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 19.6 That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. Thus, in view of the legal position propounded by the Apex Court in the case of K.S. Panduranga (Supra), we proceed to examine this appeal on merits with the aid of Sri A.N. Mulla assisted by Sri Saghir Ahmad, Sri J.K. Upadhyay, Kumari Meena, learned A.G.As. and Smt. Manju Thakur, Sri Syed Hasan Shaukat Abidi and Sri Ravindra Mani Pal, learned brief holders for the State. This appeal is directed against the judgment and order dated 23.03.1988 passed by the Vth Additional Sessions Judge, Etawah in S.T. No. 438 of 1985 (State vs. Matadeen and two others) and connected with S.T. No. 298 of 1986 (State vs. Chatanka alias Sri Krishan), arising out of Case Crime no. This appeal is directed against the judgment and order dated 23.03.1988 passed by the Vth Additional Sessions Judge, Etawah in S.T. No. 438 of 1985 (State vs. Matadeen and two others) and connected with S.T. No. 298 of 1986 (State vs. Chatanka alias Sri Krishan), arising out of Case Crime no. 199 of 1985, under Sections 147, 148, 149, 452 and 302 I.P.C., P.S. Jaswant Nagar, district-Etawah, by which the appellant Shyam Singh was convicted and sentenced to two years R.I. under Section 148 I.P.C. and imprisonment for life under Section 302 I.P.C. Briefly stated the facts of this case are that PW1 complainant Data Ram lodged a written complaint (Ext.Ka-1) at police station-Jaswant Nagar, district-Etawah, alleging therein that his two buffaloes were stolen on 5.4.1985. Later it was discovered that his buffaloes had been stolen by Ram Charan son of Punu Lodhi, Shyam Singh son of Ram Charan, Chatka son of Ram Charan and Matadeen son of unknown. To resolve the aforesaid dispute a Panchayat was held in the village and the aforesaid persons were ordered to pay a sum of Rs. 1200/- to PW1 complainant Data Ram towards the price of the stolen buffaloes. The accused agreed to pay the aforesaid amount to the complainant Data Ram in the presence of several responsible residents of the locality including one Uma Shankar. However, the accused turned dishonest and they tried to evade payment of the aforesaid amount of Rs. 1200 and threatened the complainant with dire consequences. As a result of the aforesaid enmity seven or eight miscreants climbed up on the roof of complainant's house in the night of 14/15.6.1985 and started beating his daughter-in-law and when his wife, his son Chandrabhan, wife of his relative Maniram and the complainant raised an alarm accused Shyam Singh fired at his wife causing fire arm injuries to her. Some of the miscreants were recognized as Shyam Singh, Chutka and Ram Charan by the complainant Data Ram, one Lajja Ram and other witnesses. He further stated in the F.I.R. that he would be able to recognize the other miscreants, if they were brought before him. On the basis of the written report (Ext.Ka-1) Case Crime no. 199 of 1985, under Sections 147, 148, 149, 452 and 307 I.P.C. was registered against the accused Shyam Singh, Chutka and Ram Charan and Matadeen. Chek F.I.R. (Ext.Ka-3) and relevant G.D. entry vide Rapat no. On the basis of the written report (Ext.Ka-1) Case Crime no. 199 of 1985, under Sections 147, 148, 149, 452 and 307 I.P.C. was registered against the accused Shyam Singh, Chutka and Ram Charan and Matadeen. Chek F.I.R. (Ext.Ka-3) and relevant G.D. entry vide Rapat no. 18 time 8:30 hours dated 15.6.1985 (Ext.Ka-4) were prepared by PW3 Rai Sahab Dubey. The investigation of the case was entrusted to S.I. O.P. Tiwari who visited the place of occurrence on 15.6.1985 and after inspecting the same prepared site plan Ext.Ka-13 and recorded the statement of injured Vidyawati, wife of complainant on the same day at about 6:17 p.m. Dying declaration of the injured Smt. Vidyawati was recorded on 15.6.1985 at about 6:17 P.M. before the Magistrate. After the deceased's dying declaration which is on the record as Ext.Ka-15 was recorded, the doctor in whose presence the dying declaration was recorded certified that "Vidyawati remained fully conscious and in full mental condition during recording of her dying declaration". It appears that after her dying declaration was recorded she was shifted for treatment to J.A. Group of Hospitals Gwalior (M.P.) where she died during treatment. Postmortem on the dead body of the deceased Vidyawati was conducted on 17.6.1985 by PW4 Dr. H.N. Singh at about 10:30 P.M. who also prepared her postmortem report (Ext.Ka-9). PW4 Dr. H.N. Singh had noted following injuries on the dead body of the deceased :- "Multiple gun shot wounds on lower part of the abdomen below umbilicus in abdomen and upper medial side both lungs 24 cm x 23 cm. The wound is 0.5 cm in diameter and one bigger size 2 cm x 2 cm in middle. According to PW4 the cause of death was stated to be shock and antemortem injuries to internal organs and peritoneum. Mode of death-Homicidal." After the death of Smt. Vidyawati the case was converted to one under Sections 147, 148, 149, 452 and 302 I.P.C. After completing the investigation the Investigating Officer submitted charge sheet against the accused-appellants Shyam Singh, Ram Charan and Matadeen under Sections 147, 452 and 302 I.P.C. Separate charge sheet was laid against accused Chutka under the same offences. Since the offences mentioned in the charge sheets submitted against the accused were triable exclusively by the court of session, the Chief Judicial Magistrate committed both the cases for trial of the accused to the court of Sessions Judge, Jalaun at Orai where the same were registered as S.T. No. 298 of 1986 (State vs. Chatanka alias Sri Krishan) and made over for trial to the court of 5th Additional Sessions Judge/Special Judge (Ante-Dacoity), Etawah. Since both the trials arose out of the same incident and the same F.I.R, they were consolidated and decided together. On the basis of the material collected during investigation and after hearing the accused on the point of charge learned 5th Additional Sessions Judge/Special Judge (Ante-Dacoity), Etawah framed charge under Sections 147, 452 and 302 I.P.C. read with 149 I.P.C. against the accused Matadeen, under Sections 147 and 302 I.P.C. read with 149 I.P.C. against the accused Ram Charan and Chatanka alias Shri Krishna and under Sections 148 and 302 I.P.C. against appellant Shyam Singh. The prosecution in order to prove its case against the accused examined as many as five witnesses. PW1 Data Ram and PW2 Charan Singh were produced as witnesses of fact while PW3 Rai Sahab Dubey, PW4 H.N. Singh and PW5 Ram Mohan Yadav were examined as formal witnesses. The appellant and the other accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication due to previous enmity. They also examined one Baijnath as DW1. The 5th Additional Sessions Judge, Etawah after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary convicted the accused-appellant under Sections 148 and 302 I.P.C. and awarded aforesaid sentences to him. Accused Ram Charan and Chatanka alias Shri Khashan were convicted and sentenced to two years imprisonment each under Section 147 I.P.C. and imprisonment for life under Section 302 I.P.C. Hence this appeal. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it's case against the accused beyond all reasonable doubts or not. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it's case against the accused beyond all reasonable doubts or not. Record shows that the first information report of the incident which had taken place in the night of 14/15.6.1985 at about 1:00 A.M. which was lodged by PW1 complainant Data Ram at police station-Jaswant Nagar, district-Etawah on 15.6.1985 at about 8:30 A.M., in which it was alleged that while complainant, Data Ram was sleeping on the roof of his house along with his wife Vidyawati, son Chandrabhan, daughter-in-law and wife of his relative Mani Ram, seven or eight miscreants climbed up to the roof of his house and started beating his daughter-in-law. On the complainant and his other family members raising alarm, the accused Shyam Singh fired at his wife Vidyawati causing fire arm injuries to her. Some of the miscreants were recognized as Shyam Singh, Chutka, Ram Charan and Matadeen by the complainant, his relatives, Lajja Ram and other villagers in the electric light. Record further shows that prosecution has produced PW1 Data Ram and PW2 Charan Shri as eye witnesses of the occurrence during the trial to prove the guilt of the accused-appellant. We now proceed to scrutinize and appraise the evidence of the two eye witnesses with the object of ascertaining whether the guilt of the appellant is proved on the basis of their evidence or not. We have very carefully perused and scrutinized the testimony of PW1 complainant Data Ram and PW2 Charan Shri, daughter-in-law of the complainant who were produced by the prosecution as eye witnesses of the incident. Although we have noted that there are several minor discrepancies and variations in their evidence with regard to the manner of assault such as while PW1 in his evidence had deposed that the miscreants had manhandled his daughter-in-law Charan Shri PW2, Charan Shri PW2 had stated that the miscreants had tried to outrage her modesty. There is not much difference between someone misbehaving with a girl or trying to outrage the modesty of a lady. PW1 had deposed whatever he had seen from a distance while PW2 deposed what had actually been done to her and her mother-in-law by Shyam Singh. The aforesaid inconsistency does not affect the core of the prosecution story so as to render the same untrustworthy. PW1 had deposed whatever he had seen from a distance while PW2 deposed what had actually been done to her and her mother-in-law by Shyam Singh. The aforesaid inconsistency does not affect the core of the prosecution story so as to render the same untrustworthy. PW1 in his examination-in-chief has materially supported the allegations made in the F.I.R. and deposed that on the date of incident he was sleeping on the roof or his house with his wife Vidyawati, son Chandrabhan, daughter-in-law and wife of one relative Mani Ram. His daughter-in-law was sleeping on the same roof at some distance from the place where the complainant and his son were sleeping. At about 1:00 A.M. seven or eight persons climbed up to his roof, three of whom started molesting the woman folk and manhandled his daughter-in-law Charan Shree. The miscreants misbehaved with his daughter-in-law and snatched away her son from her lap and handed him over to Ram Charan while Shyam Singh started manhandling his wife Vidyawati upon which his wife picked up a 'danda' and struck Shyam Singh with it on which Shyam Singh shot his wife with his country made pistol. He recognized three of the miscreants in the light of electric bulb as Shyam Singh, Chatanka alias Shri Krishan and Matadeen. The miscreants after causing fire arm injury to the victim made good their escape. PW2 has substantially corroborated the facts deposed by PW1 in her evidence recorded before the trial court. Similarly the omission on the part of the complainant PW1 Data Ram to state in the F.I.R. that appellant Shyam Singh had tried to outrage the modesty of his daughter-in-law on which his wife Vidyawati had struck a danda blow to the accused Shyam Singh would not render the testimonies of PW1 and PW2 either unreliable or untrustworthy vis-a-vis the time, place manner of assault and the identity of the accused. Their evidence on the point of appellant Shyam Singh having shot Vidyawati on being struck by her with a danda while he was misbehaving with trying to outrage the modesty of PW2 Charan Shri is throughout constant and clinching. Their evidence on the point of appellant Shyam Singh having shot Vidyawati on being struck by her with a danda while he was misbehaving with trying to outrage the modesty of PW2 Charan Shri is throughout constant and clinching. Moreover it is fully established from the dying declaration of the deceased Vidyawati (Ext.Ka-15) that the deceased had recognized three out of the seven or eight accused who had climbed up to the roof of complainant's house on the date of incident as Shyam Singh and Ram Charan and she had specifically attributed the role of causing fire arm injury to her to accused-appellant Shyam Singh. The prosecution case that accused-appellant Shyam Singh had shot deceased Vidyawati from a fire arm causing fire arm injuries to her which resulted in her death stands fully corroborated from the facts stated by the deceased in her dying declaration. We have collated the medical evidence on record with the ocular version and we have not found any discrepancy between the two. Record shows that the accused had examined one Baij Nath as DW2 for disproving the prosecution case that the place of occurrence was illuminated by the light emanating from the electric bulb of railway block hut and for proving that there was no source of light available at the place of occurrence at the time of incident. Even if, we assume for the sake of argument that no source of light was available at the place of occurrence at the time of incident even then it was not impossible for PW1 Data Ram, PW2 Charan Shri, deceased Vidyawati and other witnesses to recognize the miscreants who were previously known to them and the close proximity from which they had seen them especially PW2 Charan Shri and deceased Vidyawati. Another interesting aspect of the matter is that appellant Shyam Singh in his statement recorded under Section 313 Cr.P.C. has not challenged the veracity of the dying declaration of the deceased recorded before the City Magistrate, Etawah. Thus, upon a wholesome appraisal and critical evaluation of the evidence on record, both oral as well as documentary, we do not find that the trial court had committed any error or illegality in convicting the accused-appellant under Section 302 I.P.C. and sentencing him to imprisonment for life. In our opinion the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts. In our opinion the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts. However, the conviction of the appellant under Section 148 is liable to be set aside as the essential ingredients which constitute an offence under Section 148 I.P.C. are not proved from the evidence on record. For the aforesaid reasons this appeal is allowed in part. While upholding the appellant's conviction and the sentence awarded to him under Section 302 I.P.C., we set aside his conviction under Section 148 I.P.C. recorded by the trial court. The impugned judgment and order dated 23.03.1988 passed by the Vth Additional Sessions Judge, Etawah in S.T. No. 438 of 1985 (State vs. Matadeen and two others) and connected with S.T. No. 298 of 1986 (State vs. Chatanka alias Sri Krishan), arising out of Case Crime no. 199 of 1985, under Sections 147, 148, 149, 452 and 302 I.P.C., P.S. Jaswant Nagar, district-Etawah stands modified to the extent indicated herein above. The appellant Shyam Singh is absconding. The Chief Judicial Magistrate, Etawah after getting the appellant Shyam Singh traced out shall, sent him to jail to enable him to serve the remaining part of his sentence. There shall be however no order as to costs.