- (1.) This appeal, by special leave, has been filed against the judgment and order dated 23.11.2001 of High Court of Judicature at Allahabad by which the appeal filed by the appellant against his conviction under Section 302 read with Section 34 IPC and sentence of imprisonment for life imposed by learned First Additional Sessions Judge was dismissed and his conviction and sentence was affirmed.
(2.) Two persons, namely, the appellant Munney @ Rahat Jan Khan and Sarwar were tried for offences under Sections 302 and 307 both read with Section 34 IPC for having committed the murder of Iqbal Farooq Ahmad and for having attempted to commit murder of Abrar Ahmad @ Raju when Sarwar fired upon him by country made pistol. According to the case of the prosecution, the deceased Iqbal Farooq Ahmad was working as Reader in District Court at Rampur. His father Abdul Gaffar Querreshi, who had retired from the post of Munsarim in the District Court, had purchased a house in Mohalla Guiyan Talab in the city of Rampur in which Sakhawat accused was a tenant. A suit for arrears of rent and eviction was filed by Abdul Gaffar Querreshi which was decreed and in execution of the decree Sakhawat was evicted from the house on 16.10.1978 and some of his moveable properties were attached. After attachment moveable properties were kept in the same house and it was locked and they were given in the custody of PW-1 Mohammad Zaman Khan. According to the case of the prosecution PW-1 Mohammad Zaman Khan, PW-2 Abrar Ahmad @ Raju (younger brother of the deceased), PW-3 Fasih Uddin and Abdul Gaffar Querreshi came to see the house in the morning of 11.11.1978. At about 8.45 a.m. accused Sakhawat, Sarwar and Munney @ Rahat Jan Khan (appellant) came to the house and immediately Sakhawat said that he was evicted and was thrown out of the house as Iqbal Farooq Ahmed was working as Reader in the District Court and, therefore, he should be finished. All the three accused surrounded Iqbal Farooq Ahmad (deceased) and Sakhawat gave a blow in his abdomen by a big dagger. After receiving the injury the deceased fell down and thereafter Munney @ Rahat Jan Khan (appellant) and Sarwar also assaulted him by daggers. PW-2 Abrar Ahmad @ Raju tried to save his brother but Sakhawat instigated Sarwar to shoot him on which the latter took out his country made pistol and fired. However, as Abrar Ahmad @ Raju managed to enter inside the room, the gun shots did not hit him but hit the wall. Thereafter the accused ran away. An FIR of the incident was lodged by PW-1 Mohammad Zaman Khan at 9.10 a.m. on 11.11.1978 at P.S. Ganj, which is half a mile from the place of occurrence.
(3.) The police, after usual investigation, submitted charge sheet against the appellant Munney @ Rahat Jan Khan and Sarwar accused. Sakhawat accused could not be arrested as he absconded and, therefore, he was not sent for trial. After commitment of the case the learned First Additional Sessions Judge framed charges under Sections 302 and 307 both read with Section 34 IPC against both the accused. In order to establish the case prosecution mainly relied upon the testimony of three eye witnesses, namely, PW-1 Mohammad Zaman Khan, PW-2 Abrar Ahmad @ Raju and PW-3 Fasih Uddin. PW-6 Dr. R.N. Bhardwaj, who had performed post mortem examination on the body of the deceased at 2.30 p.m. on 11.11.1978, proved the post mortem report in his deposition before the court. Besides them the Investigating Officer of the case, namely, PW-5 Surat Singh, Station Officer, P.S. Ganj and some other formal witnesses were also examined. The accused examined DW-1 K.K. Srivastava, Assistant Jailor, District Jail, Bareilly, who deposed that Rahat son of Nawab Jan resident of Station Road, P.S. Civil Lines, Distt. Moradabad, was admitted in the District Jail, Bareilly on 25.1.1979 in connection with a case under Section 112 of Railways Act and after deposit of fine, he was released from jail on 27.1.1979. The learned First Additional Sessions Judge, after careful analysis of the evidence on record, found the prosecution to be correct and convicted both the accused, namely, the appellant Munney @ Rahat Jan Khan and Sarwar under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life under the said count. Sarwar was also convicted under Section 307 IPC whereunder he was sentenced to three years RI and his sentences were ordered to run concurrently. Both the accused preferred appeal against their conviction and sentence before the High Court, but the same was dismissed by the judgment and order dated 23.11.2001.;