- (1.) J. C. Gupta, J. The appellants named above have been convicted and sentenced to life imprisonment under Section 302/149 I. P. C. appellant No. 5 Samad has further been convicted and sentenced to undergo RI. for one year under Section 148 I. P. C. while the remaining appellants have also been convicted and sentenced to three months R. I. under Section 147 I. P. C. All the sentences are to run concurrently. By means of this appeal the appellants have challenged the order of conviction and sentence, dated 29-11-1980 recorded by the then IVth Additional Sessions Judge, Muzaffarnagar.
(2.) UNDISPUTEDLY the deceased of this case, Saghir Ahmad and the appellants were descendents of Dasondi as per the pedigree given below: Salamt aforesaid and appellant Niyamat were having a joint chak of about 75 Bighas in village Barla. This field was about 2 furlongs away in the west from village abadi. It was mutually agreed between Salamat and Niyamat that eastern portion of the field would remain with Salamat while the western portion with Niyamat. To the north of this field there was a water channel running west to east. Both the portions of this field were irrigated from this water course. Canal department has allotted turn and hours for the irrigation to these two tenure holders. It fixed the period for taking water from the aforesaid water course from 6. 14 p. m. on Sunday till 9. 35 p. m. on Tuesday. Niyamat and Salamat their respective portions as per the agreement Niyamat's turn was from 6. 14 p. m. Sunday to 7. 54 p. m. Monday, thereafter it was the turn of Salamat from 7. 55 p. m. Monday till 9. 35 p. m. Tuesday. These facts are not in dispute between the parties. The prosecution story further is that on 8-5-1978 which was Monday, Saghir Ahmad-deceased reached his field and diverted water in the drain towards his portion of the field as his turn of taking water had begun and when he moved a little towards his field after diverting the water, all the accused persons came there and asked why water has been diverted. At this Saghir Ahmad replied that as his turn to irrigate his portion has commenced he has done so. It is further alleged that immediately thereafter appellant Shahbuddin caught hold of Saghir Ahmad by his waist and appellant Samad gave a spade blow on his head and the remaining three appellants, namely, Niyamat,inam and Jangoo assaulted him with lathi. On the alarm raised by Saghir Ahmad witnesses were attracted to the scene of occurrence. They included Ratan Singh P. W. 4, Omkar, P. W. 5. Bishambhar and Tarabu. Seeing the witnesses arriving appellants ran away. Tarabu then went to the house of Saghir Ahmad and informed his brother Shabbir Ahmad, P. W. 1 about the incident. Shabbir Ahmad then rushed to the place of occurrence and found Saghir Ahmad lying on the ground seriously injured. He arranged for a 'buggi' (bullock cart) and carried Saghir Ahmad to Bus stand, where he shifted Saghir Ahmad on a taxi and proceeded to District Hospital, Muzaffarnagar. Dr. D. C. Mobar, P. W. 7 medically examined Saghir Ahmad at 9. 30 p. m. Dr. found following injuries as detailed in the injury report Ex. Ka-9. Incised wound 8" x 1/2" x bone on the top of head and directed right to left 4" above the left ear and 2" above the right ear. Brain matter was coming out of the wound, patient's condition was grave and he was pulseless. B. P. was also not recordable. Hurried examination was done and the patient was admitted. Injury was kept under observation. It's duration was fresh and caused by sharp heavy cutting weapon. Dr. D. C. Mobar also sent information to Police Station Kotwali, Muzaffarnagar on the basis of which an entry in the general diary was made at 11 p. m. Vide Ex. Ka-12.
(3.) AFTER admitting Saghir Ahmad in Muzaffarnagar Hospital, his brother P. W. 1 Shabbir Ahmad drafted First Information Report (Ex. Ka-1) in his own hand writing and lodged the same at Police Station Kotwali, Muzaffarnagar at 19. 30 p. m. on the same evening. Head Constable Mangu Singh, P. W. 8 was posted as Head Moharrir, he prepared chik FIR (Ex. Ka-10) and registered case under Section 307 IPC at G. D. No. 49 vide copy (Ex. Ka-11 ). Since the place of occurrence fell within the territorial jurisdiction of P. S. Purkaji, the FIR and copy of G. D. were sent to Police Station, Purkaji through the same G. D. entry. Shabbir Ahmad after lodging the report again came back to hospital and found that condition of his brother Saghir Ahmad was critical. He arranged for ambulance and started for Medical College, Meerut in the morning at about 4 a. m. But before the Court reach there. Saghir Ahmad breathed his last near Khatauli. He took Saghir Ahmad to Primary Health Centre, Khatauli where Saghir Ahmad was declared dead by Dr. Hans Kumar. The doctor sent memo Ex. Ka-2 regarding death of Saghir Ahmad to Police Station, Khatauli in respect of which entry in G. D. was made at 5. 15 a. m. vide Ex. Ka-3, Sub-Inspector Jaipal Singh P. W. 3, who was posted at P. S. Khatauli, conducted inquest and sent the dead-body of Saghir Ahmad for post-mortem examination through Constable Preetam Singh, P. W. 2 and Constable Rajendra Singh.;