Judgment

VARADARAJAN, J. :- These criminal appeals by special leave are by Manzoor alias Babu and Suleman against the common judgment of Division Bench of the Allahabad High Court in Criminal Appeals Nos. 1288 of 1979 and 1290 of 1979, confirming the conviction of Manzoor under S. 302 read with S. 34, I. P. C. and of Suleman under Sec. 302, I. P. C. and the sentence of imprisonment for life awarded to them by the learned Sessions Judge, Saharanpur in S. T. No. 414 of 1979 for the murder of one Gul Bahar at about midnight in the night of 22/23-9-1978.

2. The case of the prosecution was this : The appellants Manzoor and Suleman and the deceased Gul Bahar and Yasin (P. W. 3) and Zinda Hasan (P. W. 4) are residents of Ambehta. The appellants are cousins being sons of two sisters. The deceased Gul Bahars maternal uncles daughter is married to the appellant Suleman. Yasin (P. W. 3) is the maternal uncle of Suleman. There was an exchange of hot words between the appellant Manzoor and deceased Gul Bahar as a consequence of the latter being seen in, a house with the sister of the former, and Sulemans brother Noora also threatened the deceased in that connection. Suleman and Noora were arrested in connection with a dacoity case and they suspected that Gul Bahar had given information leading to their arrest. There was Gughal Mela in September, 1978. Zinda Hasan (P. W. 4) had come to the mela for working as a rickshaw-puller, and the deceased Gul Bahar and Yasin (P. W. 3) came to the mela two days before the occurrence in this case for working in the mela and they stayed with P. W. 4. Both the appellants went to the place where P. Ws. 3 and 4, and the deceased Gul Bahar were staying at about 8.00 p.m. on 22-9-1978 and asked Gul Bahar to take them to a cinema, and after Gul Bahar told them that he had no money they remained with him until 11.00 p.m. Thereafter, they took the deceased Gul Bahar and Yasin (P. W. 3) to the mela where all of them remained for about an hour. Then the appellant Suleman told the deceased Gul Bahar that he wanted to go for easing himself. Thereupon. both the appellants and deceased Gul Bahar left the mela and went near a lime kiln situate near a railway line at about 11.45 p.m., leaving Yasin (P. W. 3) at the mela itself. After a train had passed by, the appellant Manzoor asked the appellant Suleman to kill Gul Bahar for having got him (Suleman) and Noora arrested in the dacoity case. Thereupon, the appellant Suleman fired from a country-made pistol and caused an injury on the abdomen of Gul Bahar who snatched the towel (Ext. 1) from the assailants shoulders. The home guards Balwant Singh, Chaman Lal, Anil Kumar (P. W. 1) and Yogesh Kumar (P. W. 2) were going near the scene of occurrence while on patrol duty at the time of the occurrence. On hearing the alarm of the deceased Gul Bahar those four home guards flashed their torches and rushed towards the scene of occurrence and saw two persons running away. The deceased Gul Bahar told Anil Kumar (P. W. 1) and Yogesh Kumar (P. W. 2) that he was shot by Suleman after he had been caught by Manzoor. He told the home guards that he would not survive and requested them to record his statement. He wrapped the towel (Ext. 1) around his waist and was brought by the home guards to a nearby petrol pump where his statement (Ext. Ka. 1) was recorded by Anik Kumar (P. W. 1) as narrated by him. He was, thereafter, taken from there in a rickshaw to the Mandi Police Station where he lodged his report at 0.20 a.m. on 23-9-1978.

3. The injured Gul Bahar was sent from the Mandi Police Station with a police constable to the District Hospital, Saharanpur where he was examined by the doctor at 1. 15 a.m. on 23-9-1978. Gul Bahar died at 12.30 p.m. on that day. Dr. Ramesh Chand Bedi (P. W. 5) conducted autopsy on the body of the deceased and found a gun-shot wound on the left side of the abdomen with lacerated and inverted margins and a small portion of the small intestine protruding through th