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2016 DIGILAW 4168 (ALL)

Mustaq v. State of U. P.

2016-12-23

ARVIND KUMAR TRIPATHI, MUKHTAR AHMAD

body2016
JUDGMENT Arvind K. Tripathi,J. Shri H.C.Tiwari, learned counsel appeared on behalf of the appellant and Shushree Ainakshi Sharma, appeared on behalf of the State. The instant Criminal Appeal has been preferred by the appellant Mustaq, Ali Raza and Shakir Dad Khan challenging the impugned judgment and order of conviction and sentence dated 11.7.1984 passed by VI Additional District & Sessions Judge Bareilly in Sessions Trial No.411 of 1982 and 721 of 1982 arising out of Case Crime No.75/1980 PS.Bithrichainpur District Bareilly under section 302 I.P.C. read with section 34 I.P.C. to undergo for life imprisonment. During pendency of the appeal since the appellants Ali Raza and Shakir Dad Khan died, hence their appeal in respect of them stood abated vide order dated 12.7.2016 passed by this Court. Now the appellant no.1 Mustaq is only surviving appellant on whose behalf appeal was pressed. We have heard learned counsel for the appellant, learned A.G.A. and perused the record. The brief facts of the prosecution case is that the First Information Report was registered at Police Station Bithrichainpur, by Wahid Uddin s/o Samsuddin r/o Parsauna, PS.Bithrichainpur, District Bareilly on 9.5.1980 at about 2.30 P.M. As per avernment in the First Information Report on 9.5.1980 at about 11.00 A.M. in the village Parsauna, PS.Bithrichainpur, District Bareilly in furtherance of common intention to commit murder of the deceased Vakil Uddin, the accused appellant Mustaq with two others came to the house of Vakil Uddin and asked him to accompany them to the jungle to play cards (tash). The complainant PW-1 at that time was present there. Since as per allegation Vakil Uddin, brother of the complainant was having illicit relation with Kalsuman alias Khutti, wife of the accused appellant Sakir Dad Khan, hence they have grudge against them. When they called him for playing cards, then due to suspicion he also followed them and went at a distance of 200-250 steps away to place of Khera (a cliff), sat beneath the Pakar tree. As soon as he sat on the root of pakar tree, all of sudden Sakir Dad Khan took out kanta from behind the tree and assaulted Vakil Uddin. The accused appellant Mustaq took ballam and Ali Raza took lathi in their hands which were kept behind the root of pakar tree. They started beating with their weapons to Vakil Uddin. The accused appellants said that they would not spare Vakil Uddin alive. The accused appellant Mustaq took ballam and Ali Raza took lathi in their hands which were kept behind the root of pakar tree. They started beating with their weapons to Vakil Uddin. The accused appellants said that they would not spare Vakil Uddin alive. The complainant raised alarm which attracted Wahid Uddin and Wahid Khan, PW-1 and PW-2. They also saw from a distance of about 30 steps. The incident was also witnessed by Wahid Uddin who reached after hearing alarm who was going to his agricultural field to supervise the harvesting of wheat crops by his son. The witnesses raised alarm who rushed to the place of the incident and thereafter the accused appellants ran towards south with their respective weapons. Due to injuries caused, Vakil Uddin fell down beneath the tree near the root of pakar tree. Blood was oozing. Wahid Uddin, PW-1 sent a boy to fetch a rickshaw from rickshaw stand and from rickshaw stand he was taken to the police station. After getting report written on his dictation by Mohd.Farooq, resident of same village Parsauna, the First Information Report was registered at Case Crime No.75/1980 at Police Station Bithrichainpur. The Chick FIR was prepared. G.D. entry was made. The written report was proved and exhibited as Ext.Ka.1. The chick First Information Report was proved as Ext.Ka.6 and G.D. entry number 17 was proved as exhibited Ext.Ka.7. The investigation was started by S.I. Rameshwar Jha, PW-9. He recorded the statement of the informant Wahid Uddin, PW-1. The injured Vakil Uddin was sent to the hospital alongwith constable for medical examination and treatment and he was admitted in the hospital. During treatment he succumbed to the injuries on 10.5.1980 at about 8.53 P.M. When he was admitted in the hospital, his injuries were examined by Dr.Rajeev Agarwal, PW-7 on 9.5.1980 in district hospital as indoor patient. The doctor noted the following injuries as Ext.Ka.9. 1.Lacerated wound 1.8 cm x 0.3 cm x scalp deep at right side head 9 cm. Above to middle of right eyebrow. 2.Abraded contusion 2 cm. X 1 cm. X right side forehead 4 cm. Above middle of right eyebrow. 3.Incised wound 4 cm. X 1.5 cm. Depth under observation front of neck right side middle with taling down word 5 cm left to the clavicle. Above to middle of right eyebrow. 2.Abraded contusion 2 cm. X 1 cm. X right side forehead 4 cm. Above middle of right eyebrow. 3.Incised wound 4 cm. X 1.5 cm. Depth under observation front of neck right side middle with taling down word 5 cm left to the clavicle. 4.Punctured wound 0.6 cm x .3 cm depth under observation at front of right side just below to middle of right elbow tailing(illegible) 2 cm. Out 1 cm.lower. 5.Incised wound 5 cm. X 2.5 cm skin at right side back of neck and mastoid region. After his death when it was reported at the police station by word boy of hospital and the inquest report was prepared by S.I. S.S.Saxena PW-4 who proved the same as Ext.Ka.3. Body was handed over to constable Ram Pal, PW-6 who carried the dead body to the mortuary. The postmortem on the body of the deceased Vakil Uddin was conducted by Dr.K.S.Tiwari on 11.10.1980. He found and noted following anti-mortem injuries: 1.Abraded contusion 4 cm. X 3 cm. On the right head 9 cm. Above right ear obliquely. 2.Abrasion 4 cm. X 3 cm. On front left index finger phala. 3.Multiple injections marks on both shoulders and elbows' front. 4.Abrasion 1 cm. X 1 cm. On front of right knee joint. 5.Stitched wound 9 cm. Long with 4 stitched front of left side neck 6.2 cm. behind and below left ear directed down-word and obliquely back wards, tailing present in the lower end. 7.Incised wound 1 cm. X ½ cm. Muscle deep on left side 3 cm. Directed transversely. 8.Stitched wound 8 cm. Long with 8 stitches present on front of neck transversely with tailing on left side 5 cm above spine. 9.Stitched wound 3.5 cm. Long with stitches present vertically in the middle of neck extending from ½ cm. Above eternal notch extending upto injury no.7 above. On an internal examination doctor found that soft tissues of neck had been cut transversely. There were stitches in cartilages. The thyroid cartilage had been cut through and through on both sides. Thereafter the investigating officer converted the case under section 302 I.P.C. The statement of other witnesses were recorded by the investigating officer. On an internal examination doctor found that soft tissues of neck had been cut transversely. There were stitches in cartilages. The thyroid cartilage had been cut through and through on both sides. Thereafter the investigating officer converted the case under section 302 I.P.C. The statement of other witnesses were recorded by the investigating officer. The first investigating officer S.I. Rameshwar Jha inspected the place of occurrence, collected blood stained and plain skin of pakar tree and kept in separate container Ext.Ka.14 and when it was produced before the Court both the containers were opened which was numbered as material Ext.Ka.4-5 respectively. Thereafter the investigation was taken over by the then S.H.O. S.I. B.K.Sharma. He recorded the statement of the witnesses whose statement were not recorded by first investigating officer. After completing formalities he submitted charge-sheet. After the charge-sheet was submitted, the case was committed to the court of Sessions. The charges were framed against the appellants on 5.11.1982 under 302 I.P.C. read with section 34 I.P.C. The same was read over and explained to the accused appellant in Hindi. They pleaded not guilty and claimed to be tried. The prosecution to prove its case examined as many as ten witnesses. PW-1 Wahid Uddin, the informant, brother of the deceased, PW-2 Wahid Khan, claiming to be an eyewitness, PW-3 Babu Beg who was passerby and saw the accused Mustaq, Shakir Dad Khan and Ali Raza while running away towards south having ballam and lathi respectively. He went towards that side from which side he heard alarm. Leaving his Bailgari there he saw Wahid Uddin and Wahid Khan sitting near Vakil Uddin, PW-4 S.I. S.S.Saxena who was posted as S.I. at Police Station in May 1990. He had seen the head constable Rama Shanker while writing. He was acquainted with his hand-writing. He prepared panchayatnama which was proved and exhibited as Ext.Ka.3. He also prepared photo-lash and challan-lash as Ext.Ka.4 and 5 and sealed the dead body which was handed over to constable Rameshwar Jha and constable Ram Pal to carry the same to the mortuary for post-mortem examination. PW-5 Chandrapal who was posted as Head Moharir, Police Station Bithrichainpur proved the written report given by PW-1 as Ext.Ka.1 and Chick First Information Report prepared by him which were proved as Ext.Ka.1. PW-5 Chandrapal who was posted as Head Moharir, Police Station Bithrichainpur proved the written report given by PW-1 as Ext.Ka.1 and Chick First Information Report prepared by him which were proved as Ext.Ka.1. The report was made in G.D. as report no.17 on 2.30 P.M. which was exhibited as Ext.Ka.7, copy of the postmortem was brought and filed by Ram Dayal on 11.5.1980 which was noted in the G.D. and report no.23 at 7.30 P.M. Thereafter the case was converted from Section 307 I.P.C. to 302 I.P.C. The G.D. entry No.23 dated 11.5.1980 was proved as Ext.Ka.8, PW-6 constable Ram Pal who carried the dead body to the mortuary for postmortem examination, PW-7 Dr.Rajeeve Agarwal who was posted as Medical Officer in District Hospital on 9.5.1980. He examined Vakil Uddin, injured, son of Samsuddin at 3.50 P.M. and proved the injury report Ext.Ka.9. According to him injury report no.3-5 was caused by sharp-edged weapon, injury no.4 by pointed weapon, 3-4 were kept under observation. X-ray was advised, PW-8, the then S.H.O. Bithrichainpur who took the investigation from S.I. Rameshwar Jha on 15.5.1980 submitted charge sheet, PW-9 S.I. Rameshwar Jha, First Investigating Officer in whose presence First Information Report was registered and PW-10 Dr.K.S.Tiwari, Senior Radiologist who conducted the postmortem examination on 11.5.1980 on the body of Vakil Uddin who died on 10.5.1980 at about 8.53 P.M. in District Hospital, Bareilly. The dead body was received by mother through constable Ramshrey and constable Ram Pal with papers. After the prosecution closed its evidence, the statement of the accused appellants were recorded under section 313 Cr.P.C. They denied the charges and pleaded that due to grudge he was falsely challanned in the case but he did not produce to prove any evidence in defence. The counsel for the appellant submitted that in fact the incident was not witnessed by any person. The First Information Report is anti time. After consultation the First Information Report was lodged. When PW-1 Wahid Uddin came to know regarding the incident and due to enmity on false allegation accused-appellants were implicated namely Mustaq, Ali Raza and Shakir Dad Khan. During pendency of the appeal, the appellant nos.2 and 3 died. Now the appeal is pending on behalf of the sole appellant Mustaq. As per prosecution he was having ballam, Ali Raza lathi and Sakir Dad Khan was having katta. During pendency of the appeal, the appellant nos.2 and 3 died. Now the appeal is pending on behalf of the sole appellant Mustaq. As per prosecution he was having ballam, Ali Raza lathi and Sakir Dad Khan was having katta. Since the deceased was having criminal history, hence due to dispute any other person assaulted him. His statement was not recorded by the investigating officer. Subsequently with consultation the appellants were implicated alongwith two others accused merely on the basis of suspicion and due to enmity. In the case of murder of Jharra, father of PW-1 Wahid Uddin was an accused and in the case of murder of his father Washir Khan, Wazir Khan and Tamazuddin were accused. He contended that motive was not proved. According to allegation regarding motive the deceased had developed illicit relation with wife of the accused Sakir Dad Khan but he has not seen rather he has only heard the same. According to the statement, 15 days before the incident he came to know regarding illicit relation. Further he stated that the accused appellant Mustaq and Ali Raza informed him regarding illicit relation but he did not enquire from the deceased Vakil Uddin because he was his elder brother. The defence case was that the accused Sakir Dad Khan had already divorced his wife. There was no question of enmity on the ground but according to the appellant she continued to live in the house of Sakir Dad Khan. However, according to PW-1, before the incident the deceased Vakil Uddin did not use to go and sit alongwith the accused but he did not enquire from the deceased Vakil Uddin why he was going on that date alongwith them because he was his elder brother. Deceased was called by accused to play card and his brother did not ask them where he had to go for playing cards. He also did not make any querry and did not stop. According to his statement, he had some doubt but he though that they might slap only and there was no apprehension to commit murder. According to the statement of PW-1, Wahid Uddin he also went to follow his brother after 10-15 minutes. He went with empty hand which was unnatural conduct when there was apprehension of assault by the accused-appellants. No play cards was seen nor recovered beneath the pakar tree. According to the statement of PW-1, Wahid Uddin he also went to follow his brother after 10-15 minutes. He went with empty hand which was unnatural conduct when there was apprehension of assault by the accused-appellants. No play cards was seen nor recovered beneath the pakar tree. Except three appellants who called the deceased Vakil Uddin, the brother of the informant no other persons were present near pakar tree. It was further unnatural conduct that neither he raised voice immediately to save his brother nor he tried to save him. He also submitted that this was unnatural conduct that instead of taking immediately injured Vakil Uddin to the hospital at rickshaw or by any other mode of the transportation he directed to bring the cot from the village and on that Vakil Uddin was taken to rickshaw stand and from there by rickshaw, firstly, he was taken to the Police Station and not to the hospital though according to the prosecution, his condition was serious. He was unconscious and was not able to speak but was moaning (karahan) in unconscious condition. He further submitted that no blood was found on the cloth of PW-1 and if there was apprehension either he should stop his brother not to go alongwith them or immediately follow them but he went after 10-15 minutes without any weapon, even including lathi danda. No immediate steps was taken for medical aid. The deceased had criminal history involved in number of cases, hence he was killed by assailants. The incident took place at 11.00 A.M. and the First Information Report was lodged at 2.30 P.M. though the distance of the police station was only about 6 km. Shri H.C.Tiwari, learned counsel for the appellant further submitted that there was no independent witnesses. PW-2 is not only the chance witness but is relative of the deceased. According to him, his son was harvesting wheat crops and he was going to see the same. He also accepted the relationship because Samsuddin, father of the deceased Vakil Uddin was real Bahnoi. PW-3 was also close to the deceased and he was also a chance witness. He was passing through by his Bailgari(Bullock-cart). According to him, he did not witness the incident of assault rather he saw, according to his statement, while they were going with their respective weapon from the place of the incident. PW-3 was also close to the deceased and he was also a chance witness. He was passing through by his Bailgari(Bullock-cart). According to him, he did not witness the incident of assault rather he saw, according to his statement, while they were going with their respective weapon from the place of the incident. Further he did not offer to take the injured to the hospital for medical aid. PW-7 Rajeeve Agrawal did not try to record the statement of injured Vakil Uddin otherwise correct fact would have been disclosed before the doctor. He further submitted that there was delay in recording the statement of PW-2 Wahid Uddin whose statement was recorded after one month and there was explanation for the delay though he was available on the date of incident, even subsequent to that he was available in the village. No blood was found on floor or beneath the pakar tree except blood on open root/skin of pakar tree. It appears that he fell down on that pakar tree or at different place he might have been assaulted by unknown assailants. Scribe Farooq was also not examined to prove the written report Ext.Ka.1. Since the prosecution story is doubtful and the prosecution failed to prove its case beyond reasonable doubt and as such the impugned judgment and order of conviction and sentence is liable to be set aside. Learned A.G.A. opposed the argument advanced on behalf of the appellant and submitted that all the three witnesses are natural witnesses. There was no reason of false implication. Since there was apprehension that the accused appellant might assault but there was no apprehension that he would be killed rather according to his statement there was apprehension that they might slap him and warn him to break relation with the wife of the accused Sakir Dad Khan, hence he followed them. When he was at a distance of 35 steps away from the place of the incident and as soon as the deceased Vakil Uddin reached beneath pakar tree to play cards, they took their weapon kept behind pakar tree and started inflicting injuries with their respective weapons, which is corroborated by the injury report and the postmortem examination report. Since he was unconscious and according to PW-1 he remained unconscious since the time of the incident till his death and as such there was no question of recording his statement. Since he was unconscious and according to PW-1 he remained unconscious since the time of the incident till his death and as such there was no question of recording his statement. He was not in a position to speak. There is no delay in lodging of the First Information Report because injured Vakil Uddin was brought by cot from the place of the incident to the rickshaw stand where rickshaw was not available, then they have to wait for the same. PW-1 waited for rickshaw. Thereafter he took his brother Vakil Uddin by rickshaw to the police station to lodge the report which was at a distance of about 6 km from the place of the incident. At about 11.00 A.M. First Information Report was lodged and registered at 2.30 P.M. on the same day i.e. 2.10.1982. From there injured was sent to the hospital through constable. The injured was examined by Dr.Rajeeve Agrawal at 3.50 P.M. He noted injuries which were fresh and might have been caused within six hours. Wahid Khan, PW-2 is also a natural witness who was going to supervise harvesting of his wheat crops though his son was harvesting the same. There is no material contradiction in the statement of Wahid Uddin PW-1, he will not be disbelieved merely because he was relative of the deceased and there was no question of false implication. PW-3 Babu Beg was also passing through by his Bailgari and after hearing some noise, he saw towards the place of the incident. He saw the accused appellant running away from the place of the incident with their respective weapon and when he reached at the place of the incident, he found PW-1 Wahid Uddin and others who were trying to take care of injured Vakil Uddin. Thereafter he went to his house by his Bailgari. Since there was no request from him, hence there was no question of providing Bailgari to carry injured. The injury report and postmortem examination report have also supported the FIR version and the statement of the witnesses. There was no material contradiction. In view of the evidence prosecution has proved successfully the case beyond reasonable doubt against the accused appellant. The trial court rightly convicted and sentenced, hence the present appeal against the conviction being devoid of merit is liable to be dismissed. There was no material contradiction. In view of the evidence prosecution has proved successfully the case beyond reasonable doubt against the accused appellant. The trial court rightly convicted and sentenced, hence the present appeal against the conviction being devoid of merit is liable to be dismissed. Considered the submissions of learned counsel for the parties and perused the record. PW-1 Wahid Uddin is real brother of the deceased Vakil Uddin. He lodged the First Information Report regarding the incident. According to his case Mustaq s/o Mohd.Raja, Ali Raja and Shakir Dad Khan came to call his brother deceased Vakil Uddin on 9.5.1980 to to accompany them for playing the cards and his brother went alongwith them. However, feeling suspicion he also followed them. According to his brother, Vakil Uddin developed relationship with Kalsuman alias Khutti, wife of the accused appellant Sakir Dad Khan and he heard regarding relationship. He had not seen that relationship but he came to know regarding illicit relationship 10-15 days before the incident. It was informed to him by the accused Mustaq and Ali Raja but there was no threat to him from their side. He also did not try to ask his brother to settle the matter. According to him Shakir Dad Khan divorced his wife but she was not living alongwith him rather she was living in the house of accused Sakir Dad Khan. He also stated that before the incident his brother deceased Vakil Uddin did not use to accompany and sat with the accused appellant but he did not make any enquiry on that date. When they called him to play cards and when there was doubt regarding relationship with wife of one of the accused, then on their offer first time going alone alongwith them, appears to be unnatural conduct. According to him PW-1 followed them because he has apprehension that they might assault his brother but further he stated that there was no apprehension to commit murder, hence they went without any weapon. However, immediately he did not follow them rather according to him he went after 10-15 minutes, after his brother went from his house. When he was at a distance of 20-25 steps, he saw that the accused were inflicting the injuries to his brother with their respective weapons and they assaulted for about five minutes. However, immediately he did not follow them rather according to him he went after 10-15 minutes, after his brother went from his house. When he was at a distance of 20-25 steps, he saw that the accused were inflicting the injuries to his brother with their respective weapons and they assaulted for about five minutes. As soon as he saw assaulting his brother no alarm was raised for help and did not try to save him. Apart from that after the incident according to PW-1 firstly, he asked his cousin to bring cot though condition of his brother was serious but he was taken to the village. About 25 minutes time was consumed to bring cot. By cot he was taken to the rickshaw stand. According to PW-2 he was directly taken to rickshaw stand and not to village from the place of the incident i.e. khera. However, PW-1 Waheed Uddin at rickshaw stand, the report was got written by Mohd.Farooq, son of Gulam Uddin. According to PW-2 Wahid Khan there was doctor in the village but neither there was any attempt to get the injured Vakil Uddin examined and to provide medical aid nor his opinion was taken, this conduct also appears to be unnatural. Blood was oozing from his wound but no blood was found on the cloths of the PW-1 and other persons who picked up injured. There was 'Bailgari'(Bullock-cart) of PW-3 but neither he offered nor there was any attempt either by PW-1 informant or other who were present to carry injured by the bailgari instead of waiting for cot and rickshaw. According to PW-1 he was waiting at rickshaw stand for about 40 minutes for rickshaw. He waited for cot for about 25 minutes. There was no attempt, even for bandage to cover the wound to stop the blood. When he reached at the police station he remained there for 25-30 minutes. His statement was recorded there, when he lodged the First Information Report but according to his statement he did not go to contact the constable in the room but constable himself came out and saw the injuries. He remained standing near rickshaw till report was written by constable. Thereafter the injured was taken to the hospital. His statement was recorded there, when he lodged the First Information Report but according to his statement he did not go to contact the constable in the room but constable himself came out and saw the injuries. He remained standing near rickshaw till report was written by constable. Thereafter the injured was taken to the hospital. With regard to the criminal history of the deceased it was admitted by PW-1 that there was a case against the deceased under section 394 I.P.C. but he was not aware regarding the case under sections 394, 398 and 302 I.P.C. However, there were two cases under section 25 Arms Act when the incident took place at that time there was case under section 25 of the Arms Act connected with dacoity pending against him. There was no recovery of weapon from the accused appellant. PW-2 is related to the deceased as father of the deceased was his real bahnoi and Mohd.Farooq who has written the report on the dictation of PW-1 is bhanja of PW-2 and is chance witness because his son was harvesting wheat crops and was going to see them. When he saw the incident went near the injured, thereafter he went to the agricultural field and from there he went to his house instead of coming to the place of the incident. He did not bother to enquire the condition of the injured who was related and whether he was taken to the hospital or not and went to his house. Subsequently he came to the rickshaw stand. He also did not accompany to the informant when he went for lodging of the First Information Report because two persons went alongwith him. Apart from that if he was present at the place of the incident in the village, there was no explanation as to why his statement was not recorded on the same day or on the next day. In fact his statement was recorded after about one month on 9.6.1980, according to PW-8 the second investigating officer S.I. B.K.Sharma. These facts also create doubt, whether he witnessed the incident or not though his name was mentioned in the First Information Report. So for as PW-3 is concerned, he was a chance witness while he was coming by a Bailgari(Bullock-cart). He saw after hearing voice. He left Bailgari and went towards to the place of the incident. These facts also create doubt, whether he witnessed the incident or not though his name was mentioned in the First Information Report. So for as PW-3 is concerned, he was a chance witness while he was coming by a Bailgari(Bullock-cart). He saw after hearing voice. He left Bailgari and went towards to the place of the incident. He saw the accused while running away from the place of the incident with their respective weapons. He went at the place of the incident and remained there for 20-25 minutes but he did not offer to take injured by 'Bailgari' though according to PW-1 he was waiting for cot and thereafter he waited for about 40 minutes at rickshaw stand for rickshaw. Suggestion was that he was friend of Vakil Uddin, injured and he returned to his house with his Bailgari, hence that conduct appears to be unnatural. According to PW-5 Chandrapal, Head Constable, who prepared chick report and made G.D. entry on 9.5.1980. The deceased was fully conscious but he was speaking. However, there was no attempt either to take him immediately to the hospital or to record his statement because according to PW-1 he waited for 20-25 minutes for the cot at rickshaw stand and thereafter he stated that the appellants remain standing for 25-30 minutes at police station though the condition was serious and immediate medical aid was required. These circumstances creates doubt about the prosecution story as the prosecution was required to prove the case beyond reasonable doubt. The only surviving appellant Mustaq is entitled for the benefit of doubt, even the inquest is not at printed proforma rather the same was prepared on plain paper and sections have not been mentioned either on the inquest report or on the challan losh and photo losh, Ext.Ka.3, 4 and 5 respectively. In view of the aforesaid discussions, since the prosecution failed to prove the guilt beyond reasonable doubt, hence the impugned judgement and order of conviction and sentence dated 11.7.1984 passed by VI Addl. District & Sessions Judge, Bareilly in Sessions Trial No.411 of 1982 and 721 of 1982 arising out of Case Crime No.75/1980 P.S. Vithrichainpur, District Bareilly under section 302 I.P.C. read with section 34 I.P.C. is hereby set aside. Accordingly the present criminal appeal is hereby allowed. District & Sessions Judge, Bareilly in Sessions Trial No.411 of 1982 and 721 of 1982 arising out of Case Crime No.75/1980 P.S. Vithrichainpur, District Bareilly under section 302 I.P.C. read with section 34 I.P.C. is hereby set aside. Accordingly the present criminal appeal is hereby allowed. Since the appellant is on bail, hence his bail bonds and sureties are hereby discharged, provided he furnishes fresh personal bond and sureties in view of the provision under section 437A Cr.P.C. Let a copy of this order be sent to the court concerned for compliance.