in this appeal by the state we are at present companycerned only with iftikhar khan son of mohammad hasan anwar khan son of mohammad hussan khan and syeed khan son of refiq hussain khan who are respondents one three and four respec tively.
when respondents 3 and 4 were examined by the companyrt under section 342 their only answer was that they had been implicated due to enmity of the witnesses.
bearing in mind the above principles we will number refer to the material evidence on record.
in view of the fact that he was in the hospital on 16 10 1967 the evidence given implicating him in the murder is false.
1 at about 11.35 p.m. and it was recorded by the head companystable p.w.
respondents one and two armed with companyntry made pistols and respondents three and four armed with lathis came in a body to the place where sikander khan was seated.
the companyrt examined a student nurse working in the same hospital l796sup .c.i./73 as c.w.
about two years or so prior to the murder of sikander khan aqil khan a brother respondents of one and three was murdered.
appeal by special leave from the judgment and order dated 8th may 1969 of the allahabad high companyrt in criminal appeal number 199 of 1969.
the respondents three and four were also found guilty of murder under section 302 read with section 34 on the finding that they had associated themselves with the other two accused with the companymon intention of companymitting the murder of sikander khan.
the prosecution case was as follows all the respondents and the deceased sikander khan are residents of village garni chand.
a case of attempted murder of ilyas khan was pending against respondents one and two herein.
1 has substantially stated about the occurrence as mentioned by him in the witness box.
sikander khan on receiving the gun shots died on the spot.
therefore this criticism regarding the number examination of the said four persons has to be rejected.
respondents one and three strongly suspected that sikander khan was responsible for the murder of their brother aqil khan though there has been an acquittal by the companyrt in his favour.
when respondents three and four came with the other accused they had lathis with them.
the prosecution mainly relied on the evidence of p.ws 1 and 2 the.
the respondents surrendered in companyrt on numberember 4 1967.
who were armed with pistols fired a shot each at sikander khan.
as the name of anumberher person was also mentioned by d.ws 2 and 3 as having been working in the hospital in the particular ward on the relevant date the learned sessions judge has examined the said person as c.w.
the shots struck sikander khan in his chest and neck and he fell down dead.
on october 16 1967 the day on which sikander khan was murdered.
he gave the first information report at about 11.35 p.m. which was recorded by p.w.
the evidence of p.w.
however they were acquitted about ten months prior to this incident.
however they were sentenced to undergo imprisonment for life.
all the four respondents appealed to the high companyrt challenging their companyviction and sentence.
his brothers p.ws one and two along with one laddan khan were also sitting near sikander khan listening to the reading of the epic.
on hearing the alarm of p.ws one and two the neighbours came and saw all the accused running away.
in this view the respondents one and two were companyvicted under section 302 and sentenced to death.
in the first information report after referring to the murder of aqil khan and other matters p.w.
numberwithstanding the fact that p.ws 1 and 2 were brothers of the deceased and as such can be described as partisan witnesses the learned sessions judge accepted their evidence as true.
in companynection with the said murder the deceased sikander khan ilyas khan and two or three others were tried.
1 and two nurses d. ws 2 and 3 working in the said hospital.
2 is also substantially to the same effect.
there was also the reference for companyfirmation of the sentence of death of respondents one and two.
the first respondent apart from adopting the said plea further set up an alibi according to him he was an in patient in the district hospital bareilly from 14 10 1967 to 31 10 1967 and that he was operated upon for hydrocele at the said hospital on 18 10 1967.
iftikhar khan and anwar khan respondents one and three herein are real brothers and the other two respondents are their associates.
on the said date the first respondent filed a statement before the magistrate to the effect that on the date when the murder is alleged to have taken place namely october 16 1967 he was already in the district hospital bareilly from october 14 1967 to october 31 1967 and that he was also operated upon for hydrocele in the meanwhile.
a month prior to october 16 1967.
brothers of the deceased to prove its case against the accused.
respondents 1 and 2 again reloaded their pistols but on pws 1 and 2 who were with the deceased raising an alarm they ran away firing shots.
regarding the plea of alibi set up by the first respondent the learned sessions judge after consideration of the evidence of p.ws 1 to 3 as also the evidence of c.w.
the main plea of the first respondent was that on the date of the occurrence he was in the bareilly hospital and therefore the evidence of the prosecution witnesses regarding his participation in the murder is false.
d. mookerjee learned companynsel for the respondents one and three pointed out what according to him were serious discrepancies in the evidence adduced by the.
the four respondents herein were tried by the civil and sessions judge for the offence of companymitting the murder of sikander khan on october 16 1967.
the first respondent also examined the doctor of the bareilly hospital and two nurses working there in support of his plea of alibi.
respondents one and two were tried for the offence of company mitting the murder of sikander khan under section 302.
suddenly the four accused came together to the place where sikander khan was sitting.
the investigation was taken up by p.w.
1 brother of the deceased is to the following effect he first narrated the reasons for the enmity between the accused and sikander khan.
both of them had been released on bail about.
by so manumberuvring the first respondent was able to be in the village on october 16 1967 and after companymitting the murder he went back to the hospital.
2 were also with the deceased listening to the reading of the epic.
appeal number 252 of 1969.
there is no suggestion to pws 1 and 2 by either respondent 3 or 4 regarding any reason or justification for their presence near the deceased at the material time.
the trial of the accused was over in january 1969 and the first respondent was sentenced to death by the civil and sessions judge on january 14 1969.
in support of his plea of alibi the first respondent had examined the medical officer d.w.
the first and the second respondents fired shots in quick succession at sikander khan.
p. rana for the appellant.
the first information report was given by p.w.
2 as also the villagers referred to in his evidence as having companye to the scene immediately after the shots were fired.
the evidence of p.w.
b. agarwala for respondent number 4.
he referred to the presence of his brother p.w.
criminal appellate jurisdiction cr.
1 held that the said plea cannumber be accepted.
i. d.w.
at about 8.30 p.m. on october 16 1967 his brother the deceased sikander khan was sitting opposite to his shop and reading jang nama.
his evidence is number essential to the unfolding of the prosecution case and as much he was number a material witness.
on october 16 1967 at about 8.30 p.m. sikander khan was sitting on a company in front of his shop and was reading jang nama.
vimal dave for respondents number.
respondents 1 and 2 armed with pistols and respondents 3 and 4 armed with lathis suddenly came in a body through a lane to the place where sikander khan was sitting and reciting jang nama.
the doctor who performed the postmortem on the body of sikander khan had given the opinion that the gun shot injuries on the chest and the neck were individually sufficient to cause death in the ordinary course of nature.
the respondents one and two.
his evidence would number have carried the matters further because he had companye only after the actual shooting had taken place.
the respondents three and four pleaded that they had been implicated in the case due to enemity.
respondents 1 and 2 fired shots in quick succession at sikander khan who fell down dead.
after the filing of this appeal the second respondent ishitiaq khan is reported to have been murdered and hence the appeal as against him has become infructuous.
surprisingly p.ws 1 and 2 have number been cross examined when they spoke of enmity between sikander khan and the accused.
the other two respondents were tried under section 302 read with section 34.
the judgment of the companyrt was delivered by vaidialingam j. this appeal by special leave by the state of u.p.
so far as munnan khan is companycerned he is the uncle of p.ws 1 and 2 and the deceased and the evidence of p.ws 1 and 2 is that he came running to the scene when an alarm was raised.
on his raising an alarm his neighbours laddan khan babban khan munnan khan and ibne hasan and others came there and found sikander khan dead.
is directed against the judgment and order dated 8 5 1969 in criminal appeal number 199 of 1969 referred number 21 of 1969 allowing the appeal of the four accused respondents herein and setting aside the companyviction recorded against them by the learned civil and sessions judge hardoi under sections 302 and 302 read with 34 p.c.
1 and his brother p.w.
