Decided on October 09,2013

Chota Appellant


U.C. Dhyani, J. - (1.) PW 1 Parvez Alam wrote a complaint (Ext. Ka -1) to Station Officer, police station Jhabreda (Haridwar) on 10.07.2004 regarding murder of his brother by some unknown assailants at around 01:45 AM in the intervening night of 09/10.07.2004. PW1 wrote Ext. Ka -1 with the assistance of scribe Shamshad Ali (PW6). It was written in the complaint that Parvez Alam's brother Munir Alam dealt with in sale and purchase of buffaloes. Munir Alam was sleeping in the verandah of his house alongwith his family members in the night. Some unknown assailants killed Munir Alam. Parvez Alam's another brother Zubair Alam (PW2) was sleeping in the neighbouring house. PW2 saw the assailants fleeing away from the place of occurrence. PW2 could identify the assailants. Chik FIR (Ext. Ka -9) to this effect was lodged on 10.07.2004, at 06:15 A.M. against unknown persons in police station Jhabreda, Roorkee, District Haridwar, which was registered as case crime no, 53 of 2004, under Section 302 of IPC. After completion of investigation, two separate charge -sheets were submitted against the accused persons for the offence punishable under Section 302 of IPC. Both the cases were committed to the Court of Sessions. When the trial commenced and prosecution opened it's case, charges under Section 302 of IPC read with Section 34 of IPC were framed against all the accused persons, who pleaded not guilty and claimed trial.
(2.) PW 1 Parvez Alam, PW2 Zubair Alam, PW3 Smt. Farzana, PW4 Shabana, PW5 Salim, PW6 Shamshad Ali, PW7 Umaid, PW8 Constable Chetan Singh, PW9 Dr. Subhash Chandra, PW10 S.I. Shanti Prashad, PW11 S.O. Nagendra Pratap, PW12 S.H.O. Vimal Chandra Tamta and PW13 Constable Surendra Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they denied prosecution allegations and said that the prosecution witnesses told a lie and they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Addl. Sessions Judge, Haridwar, vide judgment and order dated 21.11.2009, convicted accused -appellants Chota alias Bihari, Rashid, Irshad, Nanha and Muntazir under Section 302 of IPC read with Section 34 of IPC. Each one of them was directed to undergo imprisonment for life alongwith a fine of Rs. 10,000/ - each. Feeling aggrieved against the impugned judgment and order, present criminal appeals were preferred by the accused -appellants. Since all the appeals have arisen out of same FIR, therefore, they are being decided by this common judgment and order for the sake of brevity. Let us first give a brief statement of the peripheral witnesses. PW5, PW8 and PW10 were the signatory to the inquest report (Ext. Ka -2). PW6 did not support the prosecution story and so did PW7. Both were declared hostile. PW11 was the Investigating Officer of the case, who concluded the investigation. PW12 was another Investigating Officer, who conducted investigation of the case at some length. PW13 proved chik FIR and entry of the same in the G.D.
(3.) PW 9 conducted postmortem on the dead body of the victim. The Medical Officer proved PMR (Ext. Ka -3). According to the Medical Officer (PW9) the cause of death of the victim was haemorrhage, shock and coma due to ante mortem firearm injury. No other ante mortem injury was sustained by the victim, ruling out the possibility of assault upon the victim by any other weapon, including stick, at the hands of any other assailant.;

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