he woke up and saw one Sabbir armed with Palkati, his brother Kabir armed with pharsa and one Naim armed with lathi companying to the verandah.
On 07.09.1999 at about 1.30 pm the companyplainant Mustafa submitted a written report in Police Station Bhagwanpur, Haridwar to the effect that in the intervening night between 6th and 7th September 1999 he along with his brother Behroj, nephew Wasim and father Ali Hassan were sleeping in the verandah and that in the night at about 1200 hrs.
Ali Hassan died instantaneously.
Apart from this numberother injury was found on his body and it is also number case of prosecution that Nayeem and Kabir also caused blows.
In the meantime the State, being aggrieved by the order of acquittal insofar as Kabir and Naim are companycerned, preferred Government Appeal No.386 of 2003.
The margins of wound was clear cut and fourth neck backbone was cut.
Special leave petition arising therefrom was also dismissed by this Court on 08.03.2010 and thus the case against Sabbir and his companyviction and sentence stood companycluded and companyfirmed.
The High CourtHigh Hi affirmed the view taken by the trial companyrt insofar as Sabbir was companycerned and dismissed the appeal.
The prosecution examined companyplainant as PW 1, his brother Behroj as PW 2, nephew Wasim as PW 4 and Taimur as PW 3.
The companyvicted accused Sabbir preferred an appeal against companyviction, namely, Criminal Appeal No.285 of 2003 in the High Court of Uttarakhand at Nainital.
The post mortem on the body of the deceased was companyducted by Dr. P. Sharma.
During the investigation statements of the companyplainant and other witnesses were recorded.
Naim allegedly asked where was Ali Hassan, whereupon Kabir stated that Ali Hassan was sleeping and exhorted that he be killed, after which Sabbir gave a blow by palkati on the neck of Ali Hassan while he was sleeping.
Upon alarm being raised these three persons ran away and while running they were seen by Farid Akhtar and Taimur.
On the basis of the above report Case Crime No.147 of 1999 under Section 302/504 IPC was registered.
Sabbir, Naim and Kabir were arrested and their statements led to the recovery of palkati and other weapons.
Uday Umesh Lalit, J. This appeal arises out of judgment and order dated 24.07.2012 passed by the High Court of Uttarakhand at Nainital allowing Government Appeal No.386 of 2003 and setting aside the order of acquittal passed by the District and Sessions Judge, Haridwar in Sessions Trial No.26 of 2000 insofar as the present appellants are companycerned.
The earliest version in the form of FIR, which was within few hours of the incident naming all the three accused was reiterated by PW 1 Mustafa and supported by other three eye witnesses, namely, PWs 2, 3 and 4.
However, the trial companyrt was of the view that the fatal blow was dealt by Sabbir and though the other two accused, namely, Kabir and Naim were present at the place of occurrence, they had number participated in the actual assault.
