JUDGMENT :

ASHWANI KUMAR MISHRA, J.

1. Criminal Appeal Nos. 5705 of 2013 (Tayyab and Tahir vs. State of U.P.), 324 of 2014 (Waheed Ahmad vs. State of U.P.) and 362 of 2014 (Iqbal vs. State of U.P.) are directed against the judgment and order dated 27.11.2013, passed by Additional Session Judge/Special Judge (E.C. Act), Bareilly in Session Trial No. 345 of 2009 (State vs. Tahir and Others), arising out of Case Crime No. 76 of 2009 under Sections 323/34, 324/34, 302/34, 504 and 506(2) IPC, Police Station Bahedi, District Bareilly, whereby accused appellants have been convicted and sentenced to undergo one year imprisonment under section 323/34 IPC; two year imprisonment under section 324/34 IPC and life imprisonment under section 302/34 IPC with fine of Rs. 10,000/- each and in default of fine the accused appellants are to further undergo one year additional imprisonment. All the sentences are to run concurrently and half of the fine is directed to be paid to the nearest relative of deceased Minzar.

2. Prosecution case in this case proceeds upon a written report of first informant Mohd. Arif (PW-1) alleging that on 17.01.2009, at about 08.45 P.M. he was going towards Majar of Maula Shah Miyan when accused Tahir on a motorcycle kicked him and on his objection hurled filthy abuses and also threatened him. On his return when he reached Hauli Chauraha he found that the accused Tahir alongwith his real brothers Iqbal and Tayyab and cousin Wahid Ahmad were waiting, armed with pistol, sword, kanta and lathi (wooden log) and on seeing him the accused Iqbal exhorted that kill the informant. Accused persons started assaulting the informant with the pistol grip and lathi (wooden log) and on hearing his cries the informant’s brother Minzar and Ashraf came and saved him, whereafter accused persons took Minzar and Ashraf inside their house and with an intent to kill them started assaulting them with sword and kanta and accused Tahir fired from his pistol but the bullet missed. Minzar and Ashraf suffered injuries from sword and kanta and the accused persons left them in the nearby lane presuming them to be dead. The entire incident was seen in the tube-light by the informant and that his brothers are in serious condition.

3. On the basis of aforesaid written report (Ex.Ka.1) the First Information Report (Ex.Ka.7) came to be registered as Case Crime No. 76 of 2009 under Sections 323/34, 324/34, 302/34, 504 and 506(2) IPC, Police Station Bahedi, District Bareilly on 17.01.2009 at 09.10 PM. The injured Minzar was sent to the Community Health Centre for his medical examination alongwith Chitthi Majroobi with Home Guard Dwarika Prasad. The Medical Officer (PW-3) examined the injured Minzar on 17.01.2009 at 09.30 PM and found following injuries on him:

“An incised wound 8cm x 3cm Not probed on the left side back of abdomen (in the loin region) margins are clear, regular, fresh blood oozing present. Pulse weak, B.P. note recordable respiration-in gasping condition, G.C. Low, altered sesnsorium.”

In the opinion of Medical Officer the injuries were to be kept under observation and were caused by a sharp object and were fresh injuries. The injured was referred to District Hospital where he died soon thereafter. The information regarding his death was sent to the nearest Police Station at 00.15 AM on 18.01.2009. Inquest proceedings commenced at 11.30 AM and concluded at 12.20 PM at the District Hospital itself. The first informant Mohd. Arif was one of the inquest witnesses and in the opinion of inquest witnesses the deceased Minzar died on account of injuries sustained on his back and to know the cause of death his postmortem be got conducted. The body of the deceased Minzar was sealed and sent for postmortem. The postmortem (Ex.Ka.5) of the deceased has been conducted by Dr. K.K. Mishra (PW-5) at 02.15 PM on 18.01.2009 and the cause of death has been determined as shock and haemorrhage due to ante-mortem stab wound injury. The injuries found during postmorte