JUDGMENT :

Per, Shree Chandrashekhar, J.

Kuru P.S. Case No. 54/2006 was lodged against the accused persons, namely, Sudin Ansari, Akhtar Ansari, Jahir Ansari, Sanif Ansari, Babulal Ganju and 8-10 unknown extremists, on the basis of the fardbeyan of Hafiz Md. Ayub Ansari, the son of the deceased which was recorded in the morning of 04.06.2006. After the investigation, the police has submitted charge sheet against six accused persons including Hanif Ansari. One of the charge-sheeted accused, namely, Sudin Ansari has died and hence the proceeding against him was dropped.

2. The remaining five accused persons have faced the trial on the charge under section 364/34 IPC, section 302/34 IPC, section 120-B IPC, section 27 of the Arms Act and section 17/18 of the CLA Act.

3. The appellants, namely, Akhtar Ansari, Jahir Ansari and Sanif Ansari have been convicted under section 364/34 IPC, section 302/34 IPC and section 27(1) of the Arms Act.

4. The co-accused persons, namely, Babulal Ganju and Hanif Ansari have been acquitted of the charges framed against them and the charges under section 120-B IPC and under section 17/18 of the CLA Act have not been found proved against any accused person.

5. During the trial, the prosecution has examined altogether 11 witnesses; informant is PW-4.

6. The prosecution has projected Sayed Ansari- PW-1, Ainul Ansari-PW-2, Sakina Khatoon-PW-3, Ayub Ansari-PW-4 and Shams Tabrej-PW-5 as eye-witnesses, but the other witnesses – PW-6, PW-7 and PW-8 – have been declared hostile.

7. The dead body of Md. Yaseen Ansari was found on 04.06.2006 at Barwatoli Chowk, however, there is no eye witness to the occurrence in which Md. Yaseen Ansari was killed.

8. Dr. Ashok Kumar Oriya-PW-11, who conducted the post-mortem examination on the dead body of Md. Yaseen Ansari, has found the following injuries on Md. Yaseen Ansari:

“I. Entry wound on the base of neck, left side ½” lateral to mid line of neck. Margin of the wound is inverted. Entry wound extending obliquely upward in muscle deep. Exit wound on the posterior aspect of Right Ear, 3” into brain deep.

II. There is fracture of occipital bone with brain matter coming out of the exit wound.

III. Bruise of the mid thigh 1 ½” x ½”

Thoracic cavity: Both lungs pale in the heart, Right chamber and left chamber both empty.

Abdominal cavity: Liver, kidney spleen all were pale.

Time elapsed since death: Approximately 24 hrs.

Cause of death: Shock and massive hemorrhage.

Injury caused by firearm.”

9. PW-11 has found fire arm injuries on Md. Yaseen Ansari. According to him, the time elapsed since death was approximately 24 hours. He has found fracture of occipital bone with brain matter coming out of the wound and he has noticed bruise in front of mid-thigh of the extent of 1 ½” x ½”.

10. The learned Sessions Judge has noticed that the homicidal death of Md. Yaseen Ansari was not disputed by the accused persons.

11. Mr. Sarfraz Ahmed Ansari, the learned counsel, appears for the appellant Sanif Ansari in Cr. Appeal (D.B.) No. 460 of 2009; Mr. Rana Surjit Singh, the learned counsel appears for the appellant Jahir Ansari in Cr. Appeal (D.B.) No. 638 of 2009 and Mr. B.M. Tripathy, learned senior counsel appears for the appellant Akhtar Ansari in Cr. Appeal (D.B.) No. 639 of 2009.

12. The learned counsels appearing for the appellants have submitted that: (i) identification of the accused persons in the dark night is doubtful; (ii) there is serious discrepancy in the evidence of the prosecution witnesses on the time of occurrence, the manner of occurrence and presence of the appellants at the place of occurrence; (iii) motive for the occurrence has not been proved, at least against Jahir Ansari, and (iv) the chain of circumstances is not complete.

13. Lastly, it is contended on behalf of the appellants that only on the basis of the last-seen-together evidence, the appellants cannot be convicted for murder of Md. Yaseen Ansari.

14. Sri Satish Kumar Keshri, the learned APP has submitted that the post-mortem re