JUDGMENT

Uday Umesh Lalit, J.

1. 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 concerned.

2. On 07.09.1999 at about 1.30 pm the complainant 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. he woke up and saw one Sabbir armed with Palkati, his brother Kabir armed with pharsa and one Naim armed with lathi coming to the verandah. 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. Ali Hassan died instantaneously. Upon alarm being raised these three persons ran away and while running they were seen by Farid Akhtar and