Judgment

VAIDIALINGAM, J. :- This appeal, by special leave, by the State of U. P. is directed against the judgment and order dated 8-5-1969 in Criminal Appeal No. 199 of 1969 (Referred No. 21 of 1969) allowing the appeal of the four accused, respondents herein, and setting aside the conviction recorded against them by the learned Civil and Sessions Judge, Hardoi, under S. 302 and S. 302 read with S. 34 I.P.C.

2. The four respondents herein were tried by the Civil and Sessions Judge for the offence of committing the murder of Sikander Khan on October 16, 1967. After the filing of this appeal, the second respondent, Ishitisq Khan is reported to have been murdered and hence the appeal as against him has become infructuous.

3. In this appeal by the State, we are at present concerned only with Iftikhar Khan, son of Mohammad Hasan, Anwar Khan, son of Mohammad Hussan Khan and Syeed Khan son of Rafiq Hussain Khan, who are respondents one, three and four respectively.

4. The prosecution case was as follows :

All the respondents and the deceased, Sikander Khan, are residents of village Garhi Chand. Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associates. About two years or so, prior to the murder of Sikander Khan, Aqil Khan, a brother of respondents of one and three, was murdered. In connection with the said murder, the deceased, Sikander Khan, Ilyas Khan and two or three others were tried. However, they were acquitted about ten months prior to this incident. On October 16, 1967 the day on which Sikander Khan was murdered, a case of attempted murder of Ilyas Khan was pending against respondents one and two herein. Both of them had been released on bail about a month prior to October 16, 1967. 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 Court in his favour. On October 16, 1967, at about 8.30 p. m. Sikander Khan was sitting on a cot in front of his shop and was reading Jang Nama . His brothers, PWs one and two, along with one Laddan Khan were also sitting near Sikander Khan listening to the reading of the epic. Respondents one and two armed with country made pistols and respondents three and four armed with lathis came in a body to the place where Sikander Khan was seated. The first and the second respondents fired shots in quick succession at Sikander Khan. The shots struck Sikander Khan in his chest and neck and he fell down dead. On hearing the alarm of PWs. one and two, the neighbours came and saw all the accused running away. Sikander Khan, on receiving the gun-shots died on the spot. The first information reports was given by PW 1 at about 11.35 and it was recorded by the Head Constable, PW 7. The investigation was taken up by PW 8. The respondents surrendered in Court on November 4, 1967. 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.

5. Respondents one and two were tried for the offence of committing the murder of Sikander Khan under Section 302. The other two respondents were tried under Section 302 read with Section 34. The respondents three and four pleaded that they had been implicated in the case due to enmity. 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. 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. The prosecution mainly relied on the evidence of PWs 1 and 2, the brothers of the deceased, to prove its case against the accused. The first respondent also examined the doc