Judgment

DUA, J. :- The appellant in this appeal by special leave (accused no. 1 in the trial Court) was convicted by the Second Additional Sessions Judge of Thana of offences under Ss. 148, 323 and 302, I.P.C. and was sentenced to death under S. 302 and to various terms of rigorous imprisonment under Ss. 148 and 323 of the said Code. The High Court maintained his conviction and confirmed the sentence of death. He has now appealed to this Court and Shri. Dholakia, learned counsel appearing in support of this appeal has addressed lengthy arguments challenging both the conviction and the sentence.

2. This case is an off-shot of the unfortunate communal riots which occurred on May 7, 1970 in the town of Bhiwandi in Thana District in the State of Maharashtra. Though the trouble originally started in the town of Bhiwandi it spread to the neighbouring towns and villages. In the Thakurpada of Tansa village there lived one Abdul Khalil ged about 55 years along with his family members. This was the only Muslim family in Thakurpada. He and his wife Sahebi had ten children. Their names and ages in the order of seniority are: Shaukat (son) about 23 years, Shamsuddin (son) (who has appeared as (P