1. This appeal is filed by two accused who are convicted and sentenced for different offences by the learned 3rd Additional Sessions Judge, Ahmednagar in Sessions Case No. 7 of 1988 on 15.4.1988. Appellant no. 1-Khalilkhan Bismillakhan is convicted of offences punishable under Sections 302, 324, 201 of the Indian Penal Code and sentenced to suffer imprisonment for life, rigorous imprisonment for 3 years and rigorous imprisonment for 2 years respectively for the said offences. Appellant no.2-Mohommad Kayamuddin is convicted of offences punishable under Sections 326 r/w 34 and under Sections 324 r/w 34 of the Indian Penal Code and sentenced under Sections 326 r/w 34 of the Indian Penal to suffer rigorous imprisonment for 3 and 1/2 years and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for one month and for offence under Sections 324 r/w 34 of the Indian Penal Code to suffer rigorous imprisonment for 2 years.

Substantive sentences were directed to run concurrently. The appellants were acquitted of offence punishable under Sections 307 r/w 34 of the Indian Penal Code. The appellant no.2 was acquitted of offence punishable under Sections 302 r/w 34 of the Indian Penal Code.

2. Facts relevant for decision of this case are that on 18.10.1987 at about 11.15 p.m. at Yamuna Sadan, Burudgaon road, Ahmednagar both appellants went to the house of deceased Imtiyaz Shaikh who was working as Upper Divisional Clerk in A.C.Centre and School of Army at Ahmednagar. At that time deceased Imtiyaz was sleeping with his wife Nasrinbanu (pw6) and their minor son of two years. The appellants rang the door bell and deceased Imtiyaz and Nasrinbanu got up. Imtiyaz went and opened the door. Appellant no.1-Khalilkhan who was armed with knife, gave blows with it on the person of deceased Imtiyaz. At that time Nasrinbanu (pw6) went to intervene, but appellant no.2-Mohammad Kayamuddin gagged her mouth. Appellant no.1-Khalilkhan put his foot on her leg and gave knife blow on her thigh. As many as 19 blows were given on the person of Imtiyaz Shaikh, as a result, Imtiyaz died on the spot. After giving blows both the appellants ran away.

3. It is case of the prosecution that both the appellants were also serving in A.C.Centre and School of Army at Ahmednagar. Appellant no.1-Khalilkhan had love affair with Kuljeetkaur (pw4). They married, but appellant no.1-Khalilkhan was suspecting that deceased Imtiyaz had illicit relations with Kuljeetkaur (pw4). The marriage of appellant no.1-Khalilkhan had taken place on 9.6.1987, however, they could not pull on together. On 30.9.1987 both Kuljeetkaur (pw4) and appellant no. 1 purchased a stamp paper. A divorce deed was written on the stamp paper on 1.10.1987, but it was executed on 15.10.1987. The incident of murder of deceased Imtiyaz had taken place on 18.10.1987.

4. The only eye-witness to the incident is Nasrinbanu (pw6)-the widow of deceased Imtiyaz. She raised shouts, but it appears that no neighbour was bold enough to come out in time and catch hold of the culprits. Admittedly Nasrinbanu (pw6) was not knowing the assailants prior to the incident. So, the test identification parade was arranged. It was held by Yusufkhan Pathan (pw7)-Special Judicial Magistrate in Sub-Jail, Ahmednagar on 28.11.1987. It was explained by prosecution that as per the custom, Nasrinbanu (pw6) who immediately on the next day of incident was taken to the place of her parental house, was not to leave her house for a period of 40 days which was period of mourning,

5. Immediately after the incident when culprits had run away, neighbour Eknath Shinde (pw5) came and saw Nasrinbanu (pw6) weeping at the door of her house and Imtiyaz in pool of blood. So he along with another neighbour went to a hotel and informed police on telephone. Immediately police rushed to the spot of incident. P.S.I.-Shejul (pw17) took over investigation. He drew inquest panchanama as there was tube light in the living room where incident had occurr