J. C. Gupta, J. - (1.) AGGRIEVED by the judgment and order dated 28.6.1980 in Session's trial No. 13 of 1979 the appellants above named have preferred this appeal challenging their conviction under Section 302 read with Section 34, I.P.C. and under Section 307 read with Section 34, I.P.C. whereunder each of the appellants has been sentenced to imprisonment for life and five years rigorous imprisonment respectively.
(2.) ACCORDING to the prosecution case, the incident in question occurred on 3.11.78 at about 7 p.m. in the Kasba of Akbarpur when Mohammad Iqbal, the deceased of the case came out from the Gymnasium, the three appellants met him in the lane in front of the Gymnasium. The accused Abdul Salam and Qamrul Zama were having country-made pistol while Mohar Khan was possessed with a hockey. Accused Abdul Salam exhorted his companions to catch hold of the deceased and to kill him. On this Mohammad Iqbal ran but all the three accused persons chased him and fell him down in front of the betel shop of Ram Kumar Patel by assaulting him with hockey. On the alarm raised by Mohammad Iqbal, Arvind Kumar P.W. 3, Virendra Singh Chandel, Vishnu Kumar Misra, Mohammad Ali and others were attracted to the scene of occurrence and when Arvind Kumar, P.W. 3 challenged them, accused Qamrul Zama opened fire upon him from his country-made pistol which caused him injuries. Thereafter Abdul Salam and Qamrul Zama both fired one shot each from their respective pistols on Mohammad Iqbal which resulted in his instantaneous death. His father Peer Ali P.W. 2 got information of the incident while he was going to purchase vegetables from his house. He immediately rushed to the scene of occurrence and found his son lying on the road in the market. He without any delay got his son removed to Government Dispensary with the help of Maqsood Ali, Kamlesh and Shakoor where his son was declared dead. It is said that the witnesses had identified the accused persons in electric light. The motive for the commission of the murder is said to be that about six months prior to the date of murder in question, accused Abdul Salam and Qamrul Zama had assaulted one Nisar Alam. Mohammad Iqbal, the deceased of the present case, was a prosecution witness in the aforesaid case. Accused Mohar Khan is a friend of rest of the two accused persons. All the three accused pressurised Mohammad Iqbal not to appear as a witness against them in the aforesaid case but Mohammad Iqbal did not agree and told them that he would depose the truth and would tell whatever had been witnessed by him. The accused persons then threatened Mohammad Iqbal with dire consequences. Peer Ali P.W. 2 got F.I.R. Ex. Ka. 7 scribed by Ram Prasad Mishra and lodged the same at police station Akbarpur on the same evening at 8.10 p.m. On the basis of the same Head Moharrir Jagmohan Lal P.W. 5 prepared check F.I.R. Ex. Ka. 3 and registered the case in the general diary at serial No. 40 whose copy is Ex. Ka. 4. Injured Arvind Kumar was then sent for medical examination. Dr. Jagdish Prasad Mehrotra. P.W. 1 medically examined Arvind Kumar Agnihotri on the same evening at 9 p.m. and he found the following injury : "A perforated wound 1/4" 1/4" 3/4" present in the right ingunial region. Fresh oozing of blood present, swelling all round the wound present, in right thigh swelling present, no blackening, scorching present around the wound."
(3.) ARVIND Kumar was referred to U.H.M. Hospital, Kanpur for expert's opinion on the nature of the wound and for X-ray examination. Injury report of ARVIND Kumar is Ex. Ka. 1. Dr. Mehrotra in his statement before the Court further opined that the injury was fresh and could be caused at about 7 p.m. on the same evening. He further opined that the injury could be caused by a firearm but since he was not sure about this, he referred the case for expert's opinion to U.H.M. Hospital, Kanpur, Dr. S. C. Prasad, Radiologist took X-ray of the right hip joint of ARVIND Kumar, X-ray report, Ex. Ka. 19, revealed a rounded radio opaque shadow of metallic density located in the region of right hip joint. The X-ray report of ARVIND Kumar is Ex. 9. Dr. Prasad opined that the injury of ARVIND Kumar could be possible by a firearm. After the case was registered at the police station, investigation was entrusted to S. I. Azizuddin Ahmad P.W. 6 who recorded the statements of first informant Peer Ali and injured Arvind Kumar at the police station itself and then conducted inquest on the dead body of Mohammad Iqbal on the same night. After completing other formalities the dead body was sent for post-mortem examination. Thereafter the investigating officer interrogated Virendra Singh, Kishan Kumar and Mohd. Ali P.W. 4. He made inspection of the site of incident in the presence of first informant Peer Ali and prepared site plan Ex. Ka. 11. He also collected blood-stained and plain earth, one empty cartridge, three ticklies and one pellet from the spot and prepared memos Ex. Ka.12 and Ex. Ka. 13 respectively. Other witnesses were also interrogated and after completing the investigation, charge-sheet Ex. Ka. 15 was submitted against all the three accused persons.;