- (1.) THE present appeal has been directed against the judgment and order dated 6 -5 -1981 passed by the III Additional District & Sessions Judge, Bareilly in S. T. No. 58 of 1980 convicting and sentencing three appellants namely Atiq Khan, Wasit Khan and Umar Ali under Sections 302 I. P. C. read with 34 I. P. C. Wasit Khan is the father of Atiq Khan who died during the pendency of this appeal. This fact is borne out from the record and the report dated 22 -3 -2003 submitted by the Chief Judicial Magistrate, Bareilly. His appeal, therefore, stands abated. Now we are left with the appeal of two appellants, Atiq Khan and Umar Ali. The conviction and sentence awarded to appellant No. 1 Atiq Khan is imprisonment for life under Section 302 I. P. C. with the aid of Section 34 I. P. C. and the appellant Umar Ali was awarded seven years rigorous imprisonment under Sections 307/34 I. P. C. apart from life imprisonment under Section 302/34 I. P. C. Atiq Khan was acquitted for the offence under Section 307/34 I. P. C. All the sentences have been ordered to run concurrently.
(2.) THE brief facts of the case are as under: - A month or so before the present incident Habbu Khan s/o Wasit Khan was abducted and murdered. The report was registered against the deceased. Mohhabbat Shah and his brother -in -law Gulsher Khan (brother of widow Smt. Bashiran) at the police station. Since then these, persons absconded for fear of being arrested. Apprehending danger to her children Smt. Bashiran, widow of the deceased, left Saidulgang in panic and settled in the grove of Thakur Tilak Singh in village Attarchendi. Mohabbat Shah had come in Attarchendi two days prior to this incident and he was living with his wife Smt. Bashiran. The murder was committed by the aforesaid accused persons at the dead of night at 2. 00 a. m. on the night intervenning 19/20 May, 1979. Two of the assailants were armed with guns whereas the father of Atiq Khan was armed with a lathi. Atiq Khan was given exhortation by Wasit Khan to take revenge of the murder of his son and Atiq Khan opened his gun and fired upon Mohabbat Shah, who died on the cot itself. On the shrieks of the children of deceased attracted defence witness Tilak Singh who was sleeping on the bundles of harvested wheat crop. He woke up and exhorted the accused persons. A lantern was burning on the tree so there was sufficient light. He was also fired upon. He suffered injuries on his back. Deena Nath another witness had also witnessed the incident. After the murder of Mohabbat Shah and causing of injuries to Tilak Singh the assailants took to their heels towards Saidullaganj. The incident was allegedly witnessed by apart from Deena Nath the Children of Smt. Bashiran also.
(3.) THE post mortem examination on the corpus of Mohabbat Shah was conducted by Dr. K. C. Asthana. He was not produced during the trial. The medical examination of injured Tilak Singh was conducted by Dr. M. P. Singh on the next morning at 11. 15 a. m. This medical officer is P. W. 2. The prosecution examined in this case Smt. Bashiran P. W. 1, Tilak Singh P. W. 3, Smt. Hamshiran, P. W. 4, daughter of deceased and Deena Nath, P. W. 6.;