- (1.) APPELLANTS Mohd. Khalid and Shahnawaj have filed the present appeal challenging the judgment and order dated 25. 02. 2005 passed by the learned Trial judge convicting both for the offence punishable under Section 302/34 IPC; and separately convicting Mohd. Khalid for the offence punishable under Section 27 of the Arms Act. For the offence of murder the appellants have been sentenced to undergo imprisonment for life. For the offence under the Arms Act mohd. Khalid has been sentenced to undergo rigorous imprisonment for three years. Crl. Appeal No. 238/2005 Page 1 of 15
(2.) IN so doing, the learned Trial Judge believed the ocular version of Farhan khan PW-1 and Amna Begum PW-4 to be true. It may be noted that Farhan Khan is the minor son of the deceased and Amna Begum is the wife of the deceased. The reasoning noted by the trial Judge for the conviction of the appellants reads as under:- "as such I do not find any deficiency in the statements of PW-1 Farhan Khan and pw-4 Amna Begum. Their presence on the spot soon after the incident has been duly corroborated by PW-3 Shehbaz who is a nearby resident and whose statement has gone unchallenged. This is further corroborated by MLC Ex. PW-9/a as it was she who had removed deceased to hospital. Both witnesses deposed that Md. Khalid fired a shot at Sadruddin and thereafter, ran away in a waiting car driven by accused Shanawaj. The fact that deceased died on account of gun shot injury is corroborated by PW-9 Dr. Sushila Gambhir as well as PW-7 Dr. Komal Singh who conducted post-mortem on the dead body. Injury was sufficient to cause death in ordinary course of nature. Weapon of offence, country-made pistol Ex. P5 along with empty cartridge Ex. P6 was recovered at the instance of accused Md. Khalid on 25. 9. 00. "
(3.) AT the hearing of the appeal, learned counsel for appellant Mohd. Khalid has made the following submissions:- (a) That the presence of PW-1 and PW-4, at the spot at the time of occurrence was doubtful and hence their claim of being eye-witnesses was false. (b) That the post-mortem report Ex. PW-7/a of the deceased records two injuries on the person of the deceased. Counsel urges that this contradicts the testimonies of PW-1 and PW-4 Crl. Appeal No. 238/2005 Page 2 of 15 wherein they deposed that appellant Mohd. Khalid fired a single shot at the deceased. It is urged that there is discrepancy in the medical and the ocular evidence. (c) With reference to photographs Ex. PW-4/da, Ex. PW-4/db and Ex. PW-4/dc, which depict PW-4 with the appellant Mohd. Khalid and the admission of PW-4 during cross- examination that she was the lady in the photograph and Mohd. Khalid was the male, counsel urged that it was a case of a relationship gone sour and hence the motive of PW-4 to falsely implicate Mohd. Khalid. (d) Lastly, PW-1 and PW-4 being the son and the wife of the deceased were interested witnesses and were not reliable. That since all the independent witnesses; namely Hanif PW-2, Shehbaz PW-3 and Feroz PW-14 have not supported the case of the prosecution, it would not be safe to convict Mohd. Khalid relying solely on the testimonies of PW-1 and PW-4. ;