The main legal point established in the judgment is the reliance on consistent and reliable evidence of prosecution witnesses, direct evidence establishing motive, and corroboration of the ocular version with medical reports.

JUDGMENT :

Ali Zamin, J.

Heard Sri Braham Singh, learned counsel for the appellants, Sri Ratan Singh, learned A.G.A. for the State of U.P. and perused the material available on record.

2. This appeal has been preferred against the judgment and order dated 28.01.2004, passed in Session Trial No.709 of 1994, State of U.P. vs. Asghar and others, by which learned Additional Sessions Judge, Court No.13, Moradabad, has convicted and sentenced each of the appellants to undergo three years rigorous imprisonment and Rs.1000/- fine u/s 452 IPC, in default of fine to undergo three months additional simple imprisonment and to undergo life imprisonment and fine of Rs.5,000/-, u/s 302/34 IPC, in default of fine six months additional sentence.

3. In brief, prosecution case is that the house of informant Mohd. Ali is situated in the east at outer side of the village. In the intervening night of 26/27-6-1994 informant and his brother Arif were sleeping on the roof of his neighbour Komil Dhobi and his elder brother Farzand was sleeping on the roof above the door and his younger brothers Raees and Dhumi, mother, father, ladies and children were sleeping below in the courtyard.

4. All of sudden, near about at 02:30 A.M., on the scream of brother-Farzand all the aforesaid family members woke up. Informant, at once, flashed a torch towards the cot of Farzand and saw and identified very well near the cot of Farzand, his neighbour Guddu Bara and Asghar khan, sons of Afsar Khan, resident of village Syaundara and their relative Khurshid son of Munna, village and police station Shahbad, District Rampur. On his interruption Asgar Khan inflicted knife injury on the stomach of his brother-Farzand and Guddu Bara fired a shot by country made pistol although he tried much to save himself by wrapping a quilt. All brothers, ladies and children exhorted them but it was in vain. When the informant tried to go ahead then Khurshid by pointing a country-made pistol towards them fired with intention to kill them. On account of fear, informant and Arif hid themselves in the khandhar (ruins of building) of Munne Khan. Dhoomi also hid himself by crossing the wall towards west in the street. Raees also tried to run away but all the three assailants jumping from the roof surrounded him at the cot and wounded him by beating him with the barrel and handle of the country-made pistol and firing. All the three brothers being alarmed called for help but due to fear no one from the village came to their rescue. When the informant's wife Bano interrupted then Khurshid stating that she is talking too much kicked on her face even then she did not keep mum then Khurshid fired a shot at her. When all the assailants went away towards north side of his house only then the informant saw and found that his brother-Farzand and his wife-Bano had expired and the condition of Raees also has become critical.

5. The assailants were bearing enmity with the informant's family because his family was doing well in life by doing hard work. Accused were bent upon for altercation but informant's family used to avoid it.

6. Informant-Mohammad Ali got scribed report (Ex. Ka-1) by Abdul Aziz (DW-1) and handed it over to the police station Vilari, district Moradabad. On the basis of written report (Ex.Ka-1), Case Crime No.228 of 1994 under Sections 452,307 and 302 I.P.C. was registered under chik FIR (Ex.Ka-6) and investigation was handed over to the S.H.O., Dharam Singh Malik (PW-8). Investigating Officer recorded the statements of the informant-Mohammad Ali and injured-Raees Ahmad at the police station and thereafter proceeded to the place of incident along with S.S.I. Muneshwar Singh and other police personnel. He inspected the spot and prepared the spot map (Ex.Ka-17). He also took into his possession the torch from the informant and prepared its memo (Ex.Ka-2). On the instruction of the Investigating Officer inquest memo of the deceased-Farzand Ali (Ex.Ka-20) and relevant documents i.e. photo lash (Ex.ka-2