POONAM SRIVASTAV, J. - (1.) APPELLANTS Mairaj Ahmad son of Subedar Khan and Shamsuddin son of Qamar Uddin have challenged the judgment and order dated 23.12.1980 passed by IInd Additional Sessions Judge, Aligarh in Session Trial No. 245 of 1973 connected with Session Trial No. 330 of 1973, convicting the appellants under Section 326/34 I.P.C. and sentencing them to eight years R.I. In fact three accused including the two appellants and one Abdul Hai faced the trial but Abdul Hai was acquitted as he was not named in the F.I.R.
(2.) SRI V.P. Srivastava, Senior Advocate, assisted by Sri Brijesh Sahai Advocate appears for the appellants and learned A.G.A. for the State. Before embarking on the facts and evidence of the case, a brief history of the Session Trial which was initially conducted in the Court of the then IVth Additional Session Judge, Aligarh Sri B.N.Mohale recorded the evidence and trials were completed. The entire records of the two session trials were taken home by Sri B.N. Mohley but they were lost from his house and, therefore, judgment was not pronounced. A long hunt for the record of two session trials was conducted but to no avail and, therefore, the judgment was not pronounced. Subsequently vide order dated 11.11.1974 the trials were transferred to the court of Sri R.R. Agrawal, the then IInd Additional Session Judge, Aligarh for denovo trial. This order was challenged by the accused in Criminal Misc. Writ Petition No. 6179 of 1974 which was dismissed by this Court on 6.2.1975. Since Sri Agrawal was transferred, two session trials came to the court of Sri H.P. Pathak, Additional Session Judge, Aligarh. There was a request on behalf of the accused that these trials be conducted in the court of Sri R.R. Agrawal which was once again not accepted. Meanwhile, Sri H.P. Pathak was also transferred. Finally the trials came up in the court of Sri R.C. Verma. He took over charge. The accused once again filed a Criminal Misc. Writ Petition No. 3360 of 1977 which was dismissed on 5.7.1977. Previously after institution of the said writ petition, proceedings were stayed but subsequent to the vacation of the stay order, Sri R.C. Verma proceeded with the trial, charges were re-framed and two session trials were consolidated vide order dated 7.9.1977. The prosecution in support of its case examined 18 witnesses. PW-1 Risal Singh proved missing of the record. Mohd. Naseem Khan PW2 is first informant, PW-3 Aftab Ahmad has proved the motive. PW-4 Ram Babu Sharma is the record keeper. PW-5 Head Constable Mahavir Singh proved G.D. regarding arrest of Mohd. Hai. PW-6 Abuzar injured witness, PW-7 Fateh Uddin Khan is an eye witness, nephew of the deceased and also alleged to be accompanying the deceased on rickshaw. PW-8 H.P. Hidayat Ali Khan scribe of the report, PW-9 Dr. J.P. Agrawal examined injuries of the injured. PW-10 Dr. Hasan eye witness. However, he has been declared hostile. Dr. J.P. Goel PW-11who conducted post mortem. PW-18 Sri H.P Dhawan is the Investigating Officer. The rest of the witnesses PW-12 to PW-17 are formal witnesses. The occurrence is alleged to have taken place on 26.4.1973 at 8.30 P.M. and the F.I.R. was lodged on the same date at 9.47 P.M. at Police Station Civil Lines by Mohd. Nasim Khan PW-2. The place of occurrence is Kothi Chamanistan situated at a distance of six furlongs from the police station. The deceased in the instant case is one Mudiruddin. Post mortem was performed on 27.4.1973 at 10.25 A.M. by Dr. J.P. Goyal PW-11.
(3.) THE defence examined six witnesses. Krishna Murari Lal Advocate Clerk DW-1, Abdul Hamid DW-2 challenged the arrest of Abdul Hamid, DW-3 Wasin Uddin, DW-4 Bal Kishan and DW-5 Rama Shanker are light Inspector and DW-6 Onkar Singh is Advcoate clerk. The facts of the case are that the accused Shamsh Uddin is maternal uncle of accused Mairaj Ahmed who is employed in the University. Deceased Mudiruddin Khan originally belonged to Qayamganj of district Farrukhabad, but since quite some time he had been residing in Zohra Bagh, Police Station Civil Lines, Aligarh. His house was at a distance of about a furlong from the house of Mohd. Nasim Khan PW-2 who was well acquainted with each other. The accused had good relations even with Aftab Ahmed PW-3 Smt. Shaukat Musharraf Jahan was the sister of Aftab Ahmed and she owned a house in Mohalla Tantanpara, Aligarh city. Accused Mairaj Ahmed lived as a tenant in her house. There was litigation between accused Mairaj Ahamed and sister of Aftab Ahmed and it was carried upto Hon'ble High Court. A decree was passed in favour of the sister of Aftab Ahmed. In execution of the decree, a commissioner was appointed for 'Dakhal Dehani'. Aftab Ahmed, his brother Sultan Ahmed and his friend Mudir Ahmed deceased used to do pairvi in that case. Dakhal was taken on the spot by ejectment of Mairaj Ahmed, but he illegally re-occupied the house by force along with Shamsh Uddin. The deceased and Aftab Ahmed went to the police and report was lodged against both these accused through Abdul Ghaffar who had given information to Aftab Ahmed about re-occupation of the house. This report was lodged one or two days prior to the murder. Aftab Ahmed along with the deceased took the police to the house, but the accused persons had run away. On that account, these two accused bore enmity against Aftab Ahmed and the deceased.;