S.C.AGARWAL, J. - (1.) (Delivered by Hon'ble S.C. Agarwal, J.) This criminal appeal has been filed against the judgment and order dated 28.10.2005 passed by Additional Sessions Judge, Court No.2, Allahabad in Sessions Trial No.232 of 1991. The four appellants and one Raees Ahmad were the accused at the trial. Accused Raees Ahmad died during pendency of the trial and the case against him stood abated. By impugned judgment, Saleem Pahalwan, Kamaruzama @ Bhallu and Mukhtar Ahmad were found guilty for the offences under Sections 147, 302 read with 149 and 323 read with 149 I.P.C. and Nizamuddin was found guilty for the offences under Sections 148, 302 read with 149 and 323 read with 149 I.P.C. The appellants were awarded life imprisonment with a fine of Rs.5000/-, in default S.I. for one year under Sections 302 read with 149 I.P.C., S.I. for three months under Sections 323 read with 149 I.P.C. Nizamuddin was awarded R.I. for one year under Section 148 I.P.C. and remaining three appellants were awarded R.I. for one year under Section 147 I.P.C. The appellants were, however, acquitted for the charge under Sections 307 read with 149 I.P.C. All the substantive sentences were directed to be run concurrently.
(2.) THE incident took place on 28.12.1990 at about 10:00 a.m. in front of the house of Ameer Mohammad (P.W.2) in village Markha Mau, P.S. Mau Aaima, District Allahabad. The F.I.R. was lodged by the complainant Mohammad Waris (P.W.1) on the same day at P.S. Mau Aaima at 10:35 a.m. The distance of police station from the place of occurrence is two kilometers. The prosecution story, as unfolded in the F.I.R., is that on 28.12.1990 a Panchayat was held in front of the house of Kanhai Lal Pasi on account of dispute between Ram Autar Pasi and Kanhai Lal Pasi. The deceased Mohammad Amin, father of the complainant, presided the Panchayat. In the Panchayat, the accused assaulted Mohammad Amin, village pradhan with kicks and fists saying that they would not obey any decision given by Mohammad Amin. Mohammad Amin came home and proceeded along with his son Mohammad Waris (complainant) to the police station on a scooter. At about 10:00 a.m., as they reached in front of the house of Ameer Mohammad (P.W.2), accused Saleem Pahalwan, Raees Ahmad, Mukhtar Ahmad all armed with lathis, Nizamuddin armed with farsa and Kamaruzama @ Bhallu armed with iron saria were already there. On the exhortation of Saleem Pahalwan, all the accused surrounded the scooter and assaulted Mohammad Amin with their respective weapons. Mohammad Amin was seriously injured. The complainant also sustained minor injuries. Mohammad Amin was sent to Mau Aaima Government Hospital along with another brother of the complainant. The incident was witnesses by Ameer Mohammad (P.W.2), Noor Mohammad, Abdul Qadir, Abdul Hadi and Abdulla besides the complainant. On the basis of written report exhibit ka-1, case crime no.333 of 1990 under Sections 147, 148, 149, 307 I.P.C. was registered against the appellants by head moharrir Mewa Lal. Station Officer Anil Kumar (P.W.5) of P.S. Mau Aaima commenced the investigation. He proceeded to the place of occurrence, interrogated Ameer Mohammad, inspected the place of occurrence, prepared site plan at the instance of Ameer Mohammad (P.W.2) and sample of blood stained and plain earth were lifted. Thereafter he interrogated other witnesses of fact. In the meantime, information regarding death of Mohammad Amin was received. On the same day at 13:10 hours, the case was converted under Section 302 I.P.C. On 15.2.1991 he was transferred and the investigation was taken over by new Station Officer J.P. Yadav, who submitted charge-sheet against the accused. Autopsy on the body of deceased Mohammad Amin was performed on 29.12.1990 at 2:30 p.m. by Dr. Siddharth (P.W.4). The deceased was about 25 years of age. Death was caused about one day earlier. Rigor mortis was present all over. No decomposition. The following ante mortem injuries were noted by the doctor in postmortem report exhibit ka-3 : (i) Lacerated wound 1 cm. x 0.3 cm. x muscle deep on right side face 3 cm. in front of right ear. (ii) Incised wound 5 cm. x 0.5 cm. x muscle deep on right eyebrow. Tapering downwards towards outer contour of left eye. (iii) Contusion 4 cm. x 2 cm. on left side face 2.5 cm. below left eye. (iv) Contusion 2 cm. x 1 cm. on left side of bridge of nose. (v) Incised wound 9 cm. x 0.5 cm. x cranial cavity deep transversely placed on back of head 8 cm. above posterior hairline. Fracture of underline bone present. (vi) Incised wound 6 cm. x 0.5 cm. x cranial cavity deep on head. Lower end of wound transecting injury no. (v). Fracture of bone underneath. (vii) Incised wound 3 cm. x 0.5 cm. x bone deep on back of head obliquely placed 1 cm. above injury no. (v) and 1 cm. left to injury no. (vi). (viii) Incised wound 4 cm. x 0.5 cm. x brain cavity deep on right side had obliquely placed 9 cm. above right mastoid. Fracture of bone underneath. (ix) Incised wound 3 cm. x 1 cm. x bone deep on right side of head obliquely placed 2 cm. behind and parallel to injury no. (viii). (x) Abrasion 3 cm. x 2 cm. on lateral aspect of left shoulder. (xi) Abrasion 1 cm. x 0.5 cm. on back of left elbow. (xii) Lacerated wound 2.5 cm. x 1.5 cm. x bone deep on dorsum of left great toe. Fracture of proximal phalanx of great toe. (xiii) Lacerated wound 1 cm. x 0.5 cm. x bone deep on dorsum of left second toe. Fracture of proximal underneath. (xiv) Lacerated wound 1 cm. x 0.5 cm. x bone deep on dorsum of left third toe. Fracture of proximal phalanx underneath. (xv) Lacerated wound 1 cm. x 0.5 cm. x bone deep on the dorsum of left fourth toe. Fracture of proximal phalanx underneath. (xvi) Lacerated wound 0.5 cm. x 0.5 cm. x muscle deep on dorsum of left foot at base of second toe. (xvii) Lacerated wound 0.5 cm. x 0.5 cm. x skin deep on dorsum of right great toe. In the opinion of the doctor, the death was caused on account of shock and haemorrhage due to ante mortem injuries. Postmortem report is exhibit ka-3. Death could have been caused on 28.12.1990 at 10:00 a.m. The injuries could be caused by iron saria, farsa and lathis. Dr. Sultan Hasan, Medical Officer, P.H.C., Mau Aaima, Allahabad had medically examined Mohammad Waris (P.W.1) on 29.12.1990 at 11:00 a.m. and found the following injuries on his person : (i) Abrasion 2 cm. x 0.5 cm. on outer side of left knee joint. (ii) Abrasion 5 cm. x 3 cm. on left upper side of foot 5 cm. away from ankle joint. (iii) Swelling 3 cm. x 2 cm. on left foot. In the opinion of Dr. Sultan Hasan, injuries of Mohammad Waris were simple in nature, were caused by friction and hard object. Duration was about 24 hours. Learned Sessions Judge framed charges under Sections 148, 302 read with 149 and 307 read with 149 I.P.C. The appellants pleaded not guilty to the charge and claimed to be tried.
(3.) THE prosecution examined five witnesses in this case. The complainant Mohammad Waris (P.W.1) and Ameer Mohammad (P.W.2) are the witnesses of fact. Dr. Sultan Hasan (P.W.3) had examined the complainant Mohammad Waris on 29.12.1990 and had proved injury report exhibit ka-2. Dr. Siddharth (P.W.4) had performed the autopsy on the body of deceased Mohammad Amin and Anil Kumar (P.W.5) is the investigating officer. S.I. Vijay Raj Singh Azad, who had performed the inquest, was examined as court witness. The appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution allegations and claimed that the complainant had got a forged injury report prepared. Nizamuddin further stated that the deceased had many enemies and had received injuries somewhere else. It was claimed that the appellants have been falsely implicated on account of enmity. One Naushad Ali @ Zibrael was examined on behalf of the appellants as a defence witness, who stated that he had a talk with Ameer Mohammad (P.W.2) in respect of murder of Mohammad Amin which was tape recorded and the tape (audio cassette) contains the voices of Ameer Mohammad and him. Ameer Mohammad had told him that Raees was not on the spot, but he was falsely implicated due to enmity. Relying upon the prosecution version and the evidence adduced on behalf of the prosecution and disbelieving the defence evidence, learned trial court convicted and sentenced the appellants as aforesaid. We have heard Sri G.S. Chaturvedi, learned senior advocate assisted by Sri Santosh Dwivedi and Ajat Shatru Pandey and also Sri Dilip Kumar, learned counsel for the appellants, learned A.G.A. for the State, Sri Brijesh Sahai, learned counsel for the complainant and perused the record.;