Heard learned counsel for the appellant Mohd. Yahiya and learned A.G.A.

1. This Criminal Appeal has been filed against the judgment and order dated 25.9.1981 passed by 3rd Addl. Sessions Judge Bijnor in S.T. No. 370/81 State Vs. Fakhruddin etc. in which the appellant Fakhruddin was convicted under Section 304 part II I.P.C. and sentenced to four years R.I. and was also fined Rs. 1000/- and in default of fine six months R.I. and appellants Khalil Ahmad and Mohd. Yahiya under Section 304 Part II I.P.C. read with Section 34 I.P.C. and each of the appellant was sentenced to three years R.I. and were fined of Rs. 500/- and in default further R.I. of three months.

2. In brief, the prosecution case is that on 29.6.1980 at 9:30 pm when Shakil Ahmad, the younger brother of complainant Nasir Hussain was going to market to purchase his household goods, the accused persons Fakhruddin, Khalil Ahmad and Mohd. Yahiya resident of Mohalla Quila town Sahanpur met in the way and due to the old enmity stabbed his brother in his stomach. Meanwhile the informant Nasir Hussain came out from the mosque where he had gone for prayer to Almighty God. He heard noise and hearing that Munna, Baboo and Shahid Hussain also reached there who saved the life of his brother. Due to the reaching of the witnesses on the spot these accused persons ran away. He immediately took his injured brother through tempo no.4222 U.P. M to Govt. Hospital Najibabad.

3. The F.I.R. was written by Altaf Hussain which is Ext. Ka-1. In District Hospital Najibabad Shakil Ahmad was medically examined on 29.6.1980 at 11:30 pm and due to the seriousness of injuries, he was referred to District Hospital, Bijnor where he died on 5.7.1980. Postmortem of the dead body of Shakil Ahmad was conducted by Dr. J.P. Srivastava on the same date. The postmortem report is Ext. Ka-2. The matter was entrusted to Shri Vedraj Singh S.I. of Najibabad for investigation who had recorded the statement of one witness Shahid Hussain on the same day and visited the place of occurrence and prepared the site-plan Ext. Ka-10.

4. Investigating Officer recorded the statement of injured Shakil Ahmad in District Hospital on 2.7.1980 under Section 161 Cr.P.C. as Ext. Ka-11. Later on the investigation was entrusted to S.I. Sri Lal Ji Chauhan who recorded the statements of the witnesses Nasir Hussain, Munna etc. The case was converted into Section 304 I.P.C. after the death of Shakil Ahmad as per copy of G.D. Ext. Ka-12.

5. On 30.1.1981 Sri Ikramul Bari, the then IIIrd Additional Sessions Judge Bijnor framed charge u/s 302 I.P.C. against the accused Fakhruddin and charge u/s 302/34 I.P.C. against the accused Khalil Ahmad and Mohd. Yahiya.

6. In support of prosecution case, six witnesses had been examined who are Nasir Hussain P.W.1, Munna P.W.2, Dr. J.P. Srivastava P.W.3, Dr. S.P. Singh P.W.4, S.I. Sri Dharamvir Singh P.W.5 and S.I. Sri Vedraj Singh P.W.6. Besides their oral evidence the prosecution had also placed reliance upon the papers Ext. Ka-1 to Ka-13. After recording evidence of the prosecution witnesses, the accused were also examined u/s 313 Cr.P.C. and they denied the guilt. They further pleaded that they have been falsely implicated due to enmity and Partibandi in town Sahanpur. Accused Fakhruddin had pleaded in his statement u/s 313 Cr.P.C. that there is a dispute over a house between his father Nizamuddin and his uncle Riazjuddin and on account of that dispute he had been falsely implicated in this case. It has come in evidence that the remaining accused are related to Fakhruddin and that is why all the accused have been nominated in the F.I.R. There is also a defence version that the deceased Shakil Ahmad and Munna P.W.2 were of bad character and hence the prosecution case should not be relied upon.

7. During the pendency of appeal, appellant Fakhruddin and Khalil Ahmad have died and their appeal have been abated vide order dated 25.4.2016. Now main thrust of argument on behalf of the third remaining so