M.Chaudhary, J. - (1.) This is an appeal by the accused appellants from judgment and order dated 31st of March 81 passed in Sessions Trial No. 342 of 1979 State v. Ahsan and Anr. convicting them under Sections 302 and 307, each read with Section 34 IPC and Section 394 IPC sentencing each of them to imprisonment for life, five years' and seven years' rigorous imprisonment respectively thereunder.
(2.) Relevant facts of the case giving rise to this appeal necessary to be recapitulated for disposal of this appeal are us follows : Akbar Ali brother of the deceased lodged an FIR at police station Civil Lines District Aligarh on 16th of January 1979 at 7: 20 p.m. alleging that his house and the house of his brother Asgar Ali are situate adjacently as there is only one house in between their houses. One Kamruddin was in occupation thereof as tenant of Waker Ali. At about 6: 30 p.m. that very evening hearing the shrioks of his brother Asgar Ali that some bandits entered his house he taking lathi rushed to his brother's house; that one of the bandits fired at him and he had a narrow escape. In the meanwhile one Maskoor Ali, Chaman and Iqramuddin also reached there. After firing at Akbar Ali the miscreant ran away . Immediately Akbar Ali and the persons abovenarned chased the miscreant and recognized him in the light of torch flashed as Rais residing in that very locality. At that very moment they heard sound of a shot from the side of the house of Aogar Ali and then they receded and rushed towards the house of Asgar Ali and saw him lying injured at the door of his house and blood oozing from the injury. At that very time two bandits were running away coming out of the house and they recognized both of them as Naseem and Ahsan residing in the same locality in the light of torch flashed. Aahsan was armed with country made pistol and Naseem was holding a single barrel gun. Khurshid daughter of his brother Asgar Ali told him that bandits load robbed the licenced gun and cartridges belt from the house. Immediately Akbar Ali taking his injured brother rushed to the hospital but he succumbed to the fatal injury sustained by him on the way. The police registered crime against all the three under Section 302 IPC and Section 394 read with Section 397 IPC and made entry regarding registration of the case in GD (Exts ka 2 and ka 3 ). Station officer SI Jahan Singh who took up investigation of the case in his hands visited the scene of occurrence, inspected the site and prepared its site plan map (Ext Ka 7). He also inspected the lantern hanging outside the chhappar and also the torch of Akbar Ali and prepared their memos (Exts ka 8 & ka 9): He also recorded statements of the witnesses and did other necessary things. On his direction inquest on the dead body of Asgar Ali was drawn by SI Rajendra Singh. He prepared the inquest report (Ext ka 11 ) and other necessary papers/The dead body in a sealed cover alongwith necessary papers was entrusted to constables Naimuddin and Kishan Pal for being taken for its post mortem.
(3.) Autopsy conducted on the dead body of Asgar AH by Dr N K Maheshwari Medical officer District Hospital on 17th of January 1979 at 3.00 p.m. revealed an ante mortem gun shot lacerated wound of entry rounded 1 3/4 x 1 3/4" x bone deep on middle part of vertebrae column in mid line, wounds surrounded by small rounded multiple gun shot wounds in an area of 2" x 2", blackening and tattooing found present around the injury.;