M. R. Shah, J. - (1.) The present appeals before this Court arise against the impugned common judgment and order dated 22.08.2012 passed by the High Court of Uttarakhand at Nainital passed in Criminal Appeal Nos. 235/2004, 239/2004 and 261/2004 by which the High Court has dismissed the said appeals preferred by the original Accused Nos.1, 2 and 5 and has confirmed the conviction and sentence imposed by the learned trial Court convicting them for the offences under Sections 302/149 and 147 of the IPC. 1.1 That, in all, eight accused were tried for the offences under Sections 147, 148 and 302/149 of the IPC for having committed murder of one Mukhtar Ahmed. That, out of the eight accused, three accused namely, Raees Ahmed (A4), Mohd. Ashraf (A2) and Raees Ahmed @ Satna (A5) were also tried for the offence under Section 25 of the Arms Act. That, during the trial, accused Mohd. Aslam (A3) died and, therefore, the case of the said accused was ordered to be abated. That, on conclusion of the trial, the learned Additional Sessions Judge, Fast Track Court, Kashipur, District Udham Singh Nagar (hereinafter referred to as "the trial Court") held all the accused guilty for the offences under Sections 302/149 of the IPC and sentenced them to undergo life imprisonment and a fine of Rs.2,000/- each and, in case of default in paying the fine, to undergo one year RI. The learned trial Court also convicted the original Accused No.1 Smt. Farida Begum, original Accused No.6 Mohd. Nasim @ Churti and original Accused No.7 Idrish for the offence under Section 147 of the IPC and sentenced them to undergo one year RI. The learned trial Court also convicted the original Accused No.2 Mohd. Ashraf, original Accused No.4 Raees Ahmed and the original Accused No.5 Raees Ahmed @ Satna for the offences under Section 148 of the IPC and sentenced them to undergo two years RI. That the learned trial Court acquitted the original Accused Nos.2, 4 and 5 for the offence under Section 25 of the Arms Act. 1.2 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence imposed by the learned trial Court, the original Accused No.1 Smt. Farida Begum preferred Criminal Appeal No.235 of 2004 before the High Court. The original Accused No.2 Mohd. Ashraf preferred Criminal Appeal No.239 of 2004 and original Accused No.5 Raees Ahmed @ Satna preferred Criminal Appeal No.261 of 2004 before the High Court. The original Accused No.7 Idrish preferred Criminal Appeal No.238 of 2004, Mohd. Nasim @ Churti original Accused No. 6 preferred Criminal Appeal No.240 of 2004 and Raees Ahmed original Accused No.4 preferred Criminal Appeal No.251 of 2004 before the High Court, challenging their respective conviction and sentence imposed by the learned trial Court. That, by the common impugned judgment and order, the High Court has dismissed the appeals preferred by the original Accused Nos.1,2,4 and 5 and has confirmed their conviction. The High Court, however, has allowed the appeals preferred by the original Accused Nos.6 and 7, i.e. Criminal Appeal Nos.238 of 2004 and 240 of 2004 and has acquitted them by giving them the benefit of doubt. 1.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original Accused Nos.1,2 and 5 have preferred the present Criminal Appeals being Criminal Appeal Nos.1560/2013, 1652/2013 and 1653/2013 respectively. At this stage, it is required to be noted that so far as the original Accused No.4 Raees Ahmed is concerned, he has not preferred any appeal, however, his case shall be dealt with hereinbelow.
(2.) The case of the prosecution in nutshell is as under: That FIR was lodged on 01.07.1999 at about 9.15 PM at Police Station, Jaspur, Udham Singh Nagar by one Shahid Hussain against the accused persons for the offences under Section 302/149, 147, 148 of IPC and Section 25 of the Arms Act. It was revealed that the complainant, along with two of his companions, Mukhtar Ahmed and Mohd. Rafi after performing their evening Namaj at a Mosque in their town, reached the house of one Rafiq Ahmed (Dildar) at about 8.00 PM in the evening. It was further stated that the complainant and Mukhtar Ahmed often used to visit the house of Dildar after performing the evening Namaj. On that day, at about 8.20 PM, Dildar went inside his house to bring tea for his guests. During this period, Smt. Farida Begum (A1), Chairman, Nagar Palika, Jaspur, Mohd. Ashraf, Raees Ahmed, Raees Ahmed @ Satna, Mohd. Aslam, Naseem @ Churti and Idrish (all original accused), accompanied by one unknown person entered the house of 'Dildar', where these three guests were sitting. Out of these persons, Mohd. Aslam and Idrish caught the hands of the Mukhtar Ahmed (deceased), and Nasim @ Churti and the unknown person caught hold of the legs of Mukhtar Ahmed (deceased). While the complainant and Mohd. Rafiq objected, Smt. Farida Begam exhorted that "the son of Darji should be finished and we will see how he removes me as Chairman of the Nagar Palika". It was further stated that, on this exhortation, Raees Ahmed, Raees Ahmed @ Satna and Mohd. Ashraf fired from their respective guns which they were carrying. It was further stated that, out of three gun shots, two had hit Mukhtar Ahmed (deceased), whereas one did not fire or mis-fired. It was further stated that thereafter Smt. Farida Begum threatened that if anyone names them to the police or approves the "no confidence motion" against her, he shall also be killed. That the case was investigated by the Investigating Officer D. K. Sharma. He, along with other Police Officers, reached the spot at about 9.15 PM. The inquest report was completed by 11.45 PM. The Investigating Officer recorded the statements of the witnesses. After preparing the inquest report, other formalities were performed to send the dead body for post-mortem. The Investigating Officer also prepared the Panchnama of the place of incident and also prepared the map. That, during the course of investigation, the respective accused came to be arrested. The Investigating Officer also recovered the firearm used in the commission of the offence and sealed them. During the course of the investigation, the Investigating Officer also collected the incriminating materials. During the course of the investigation, the Investigating Officer also collected the medical evidence as well as the report of the scientific analyst. After conclusion of the investigation, the Investigating Officer filed charge-sheet for the offences under Sections 147, 148, 302/149 of the IPC and Section 25 of the Arms Act against the respective accused. That the learned Magistrate took cognizance and committed the case to the learned Sessions Court, which was numbered as Sessions Trial Nos. 147 of 2000, 148 of 2000 and 149 of 2000. At this stage, it is required to be noted that, as such, Session Trial No. 147 of 2000 was the main case, insofar as Session Trial Nos. 148 and 149 of 2000 were against Raees Ahmed (A4) and Mohd. Ashraf (A2) for the offences under Section 25 of the Arms Act. That all the accused pleaded not guilty and, therefore, all of them came to be tried for the aforesaid offences.
(3.) To bring home the charge against the accused, the prosecution examined the following witnesses: JUDGEMENT_7_LAWS(SC)12_2018_1.html 3.1 That the prosecution also brought on record through the concerned witnesses the documentary evidence, such as the first information report, post-mortem report, Forensic Science Laboratory report, Panchnama of the place of incident, Panchnama of the recovery of the firearm used by the original accused No. 2 etc. 3.2 After closing of the evidence on behalf of the prosecution, the defence examined the following witnesses: JUDGEMENT_7_LAWS(SC)12_2018_2.html 3.3 That the defence also brought on record the following documentary evidence: 1) Ex.D20 the report about the electricity supply in Jaspur town on 1.7.1999. 2) Ex.D32 the register of the daily log sheet dated 1.7.1999 (found to be having overwriting in the column of time on it).;