- (1.) All these appeals arise out of a common judgment of the High Court of Judicature at Allahabad whereby the High Court while allowing the appeal of two of the accused persons, dismissed the appeal of 3 other accused persons all of whom were convicted by the III Additional Sessions Judge, Deoria (UP) of offences punishable under Sections 143, 148, 149, 504, 506, 307 and 302, IPC. Three of the accused whose appeals were dismissed by the High Court, have preferred Criminal Appeal Nos. 1072-73 of 2003 and the State has preferred Criminal Appeal Nos. 1074-75 of 2003 against the acquittal of two of the accused persons who were convicted by the trial Court for the above mentioned offences.
(2.) We will first take up Criminal Appeal Nos. 1072-73 of 2003 for consideration which, as stated above, are the appeals filed by the convicted accused.
(3.) The facts necessary for the disposal of these appeals, briefly stated, are as follows: It is the prosecution case that there was enmity between one of the deceased Abid Ali and A-3 Jaishree Yadav, A-5 Daddan Yadav in regard to the auction and recovery of Tehbazari of the area between village Tatil Tola and Nawalpur crossing. A-6 Ram Pratap Yadav bore an enmity against the deceased Abid Ali on account of a pending litigation relating to a land in village Tatil Tola. A-1 Hafiz Khairul Bashr was on inimical terms with the said deceased in relation to the fixation of an electric pole on the chowk road. It is also the prosecution case that on account of these enmities, these accused persons were waiting for an opportunity to eliminate said deceased Abid Ali. It is the further case of the prosecution that on 23-9-1993 at about 5.50 p.m. deceased Abid Ali had come from Deoria, his place of residence, in his private jeep and was sitting on a Takhat in front of Pervez Book Stores, north of Nawalpur crossing. At that moment, Raju @ Noor Alam (PW6) who had a shop selling sand and clay, came to deceased Abid Ali and complained that A-3 Jaishree Yadav was raising a dispute with him (PW-6) in regard to Tehbazari money. It is also the prosecution case that PW-1 who was working as a teacher in a School at Salempur of which the deceased Abid Ali was the Manager, was then passing through the said place where the said deceased was sitting and seeing him PW-1 came to talk to the said deceased. This was at about 4.15 p.m. Prosecution also states that PW-3 Arif Ali, son of deceased Abid Ali, who was a resident of that village, was also present there at that time. It is the further case of the prosecution that at that time 8 persons including A-1 Hafiz Khairul Bashr, A-2 Jaheed, A-3 Jaishree Yadav, A-4 Manish Yadav, A-5 Daddan Yadav, A-6 Ram Pratap Yadav and two other unidentified persons came armed to that place. Amongst them, A-1 and A-2 and the unidentified persons were having country-made pistols (katta), A-3 and A-4 were carrying bombs and bags in their hands; A-5 and A-6 were carrying a knife and an iron 'Dav' respectively. Prosecution further alleges that A-3 Jaishree Yadav questioned PW-6 as to the propriety of his complaint to deceased Abid Ali. Other accused questioned the authority of deceased Abid Ali to meddle in a dispute between them and PW-6. It is stated the deceased Abid Ali warned them by asking them to have control over their language. At this stage the prosecution alleges A-1 exhorted the other accused to kill Abid Ali. Pursuant to the same, A-3 and A-4 hurled bombs at Abid Ali because of which Abid Ali received injuries and started running northwards to save himself. Prosecution then alleges that all the accused persons chased the deceased Abid Ali, hurling bombs and firing pistol shots at him and in this process when Abid Ali reached 'Palani', of one Idris, one Mahmood Shah (deceased No.2), a resident of the same village, tried to intervene, hence, the accused hurled bombs and fired pistol shots at Abid Ali and Mahmood Shah in front of the shop of one Ram Nakshatra consequent to which both Abid Ali and Mahmood Shah succumbed to their injuries on the spot. During the first attack on Abid Ali when he was sitting on the Takhat, PW-1 who was nearby also suffered an injury on his shoulder. Prosecution also alleges that there was a young boy who was also sitting on the Takhat with deceased Abid Ali who also suffered some injuries. PW-3 who was nearby ran after his father but he was not attacked by the assailants. The assailants after causing fatal injuries to Abid Ali and Mahmood Shah ran away from the place of incident shouting at and threatening the witnesses. PW-3 who is an eye-witness to the incident, then went to Salempur Police Station which is stated to be about 3-4 kms. away from the place of incident with a written complaint scribed by his brother-in-law and gave the same to PW-8 Ram Shiromani Pandey who was the officer-in-charge of the Police Station who registered a case at about 5.30 p.m. on 23-9-1993 and proceeded to the place of incident with his staff. There he recorded the statements of some witnesses and conducted the spot Panchnama, inquest Panchnama of the dead body and recovered certain empty cartridges, splinters of the bomb and one live bomb found at the place. It is relevant to note herein that before leaving for the place of the incident, PW-8 had sent a special report to the Jurisdictional Magistrate through a Constable in his Police Station to Deoria which is about 25-27 kms. from Salempur. During the course of his visit to the spot and preparation of the Panchnamas it is stated that senior officers on coming to know of the double murder case through radio transmitters, reached the spot. PW-8 after completing the inquest sent the dead bodies to Deoria along with Police Constable Durga Prasad PW-7 in a jeep around mid-night of 23/24-9-1993. It is stated that in view of the fact that on the way the said jeep developed mechanical problems and the same could be repaired only in the early hours of 24-9-1993, he handed over the bodies at about 10 a.m. to PW-4 Dr. V. D. Srivastava who conducted the post mortem on the dead bodies of Abid Ali and Mahmood Shah on 24-9-1993 at 10.30 a.m. and 12.15 p.m. respectively. He noticed 11 injuries on different parts of Abid Ali's body with corresponding internal injuries. In the opinion of PW-4 death of Abid Ali was due to shock and haemorrhage as a result of ante-mortem injuries.;