MANJU RANI CHAUHAN,J. - (1.) This appeal has been preferred by appellants, namely, Aftab Ahmad, Laiq Ahmad, Imtiaz Ahmad @ Addey, Sukha, Afzal Ahmad, Chootey Mian @ Afsar Ahmad, Chhutawa @ Sakeel Ahmad and Bullar @ Abdul Sattar against the judgment and order dated 14.05.1985 passed by VIth Additional District and Sessions Judge, Bareilly in Sessions Trial No. 144 of 1982 arising out of case crime no. 231 of 1979, police station Bhojipura, District Bareilly, whereby all the appellants have been convicted under section 147, 323/149, 307/149 and 302/149 Indian Penal Code and the appellant nos. 1, 2, 3 and 6 have also been convicted under section 148 IPC. The appellants have been sentenced for life imprisonment under section 302/149 IPC and with respective lesser punishments for other offences mentioned above and all the sentences were to run concurrently.
(2.) According to the prosecution version, the incident in question is alleged to have taken place on 16.12.1979 at about 01:30 P.M., for which the first information report is alleged to have been lodged on the same day at about 03:30 P.M. by Jamal @ Jamaluddin, who also received injuries in the incident. The prosecution case as narrated in the first information report is that the first informant was having litigation regarding his land with one Sagir Ahmad S/o Abdul Rahim, resident of his village, in which the informant succeeded and was in possession of the land. On account of this, Sagir Ahmad and his family members bore a grudge with the informant and his family members and they wanted to grab possession of the land illegally. On the date of incident, at about 01:30 P.M., when the first informant Jamal (Jamaluddin) and his sons Khairuddin (the deceased), Ashfaq (PW2) and Riyazuddin (PW1) were plowing their field, the accused persons, namely, Sagir Ahmad S/o Abdul Rahim (died during trial), Aftab Ahmad S/o Iqbal Ahmad (Appellant no.1), Chhotey Mian S/o Sagir Ahmad (Appellant No.6), Addey S/o Sagir Ahmad (Appellant No.3), Laeeq Ahmad S/o Jamil Ahmad (Appellant No.2) armed with guns and Afzal Ahmad S/o Sagir Ahmad (Appellant No.5), Chhutawa S/o Khaleel Ahmad (Appellant No.7), Sukha S/o Jamil Ahmad (Appellant No.4), Bullad S/o Nazir Azmad (Appellant No.8), armed with lathis, came to the field and started abusing and threatening informant side and started plowing the field with their tractor. When Khairuddin (the deceased) tried to stop them, accused Sagir Ahmad shouted that this Khairuddin is posing himself more than what he actually is and, thereafter, fired upon him from his gun, due to which Khairuddin sustained injuries, fell on the spot and died. Other accused Chhotey Mian, Laeeq Ahmad, Aftab Ahmad started firing upon Ashfaq from their guns causing him injuries. The other accused persons assaulted the first informant and his son Riyazuddin by lathi. It is alleged that the accused persons after killing Khairuddin and causing injuries to first informant and his sons Riyazuddin and Ashfaq ran away towards village along with their tractor, whereas the dead body of Khairuddin was lying in the field. It is stated in the first information report that as the condition of Ashfaq was serious, the first informant took Ashfaq and Riyazuddin to Bareilly Hospital whereas the written information to the police station was being sent through Mohd. Ayub @ Doctor S/o Mohd. Jahur Ahmad, who lodged the first information report at police station Bhojipura on the same day, at 03:30 P.M., giving rise to case crime no. 231 of 1979, U/s 147 , 148, 149, 302 ,307,323 IPC. In the first information report, it is also stated that the aforesaid incident was witnessed by Habib Ahmad S/o Khaleel Ahmad, Abdul Kareem S/o Mohd. Raza, Rafeeq Ahmad S/o Abdul Haq and few others.
(3.) The record further reveals that after registration of the first information report, the investigation commenced and the Investigating Officer went to the spot, prepared inquest report, recovered blood stained soil and empty cartridges etc, from the spot and prepared memo of recoveries and also prepared site plan. After inquest, the dead body was sent for post mortem examination which was conducted on 17.12.1979 at District Hospital, Bareilly by Dr. J.N. Bhargava (C.W.-2), the then Medical Officer, Bareilly and in his report (Ex. Ka-16) noted following ante mortem injuries on the person of the deceased: - "1. Gun shot wound of entry 0.5 cm x 0.5 cm x skin deep on right cheek 3.5 cm below lateral and of right eye; 2. Contusion 6 cm x 2 cm on right side of chest upper part 8 cm below tip of right shoulder; 3. Contusion 8 cm x 2 cm on right side of chest 5 cm below right nipple; 4. Multiple gun shot wounds of entry in an area of 30 cm x 27 cm on front lower part of mid of abdomen pelvic region and front and outer aspect of right thigh 11 cm above knee joint. Blackening present. Average size 0.4 cm x 0.4 cm. Skin muscle and cavity deep 14 shots were recovered from thigh region. 5. Abraded contusion 10 cm x 6 cm in front of right leg upper part 8 cm below right knee joint underneath. Both bone fractured." The doctor noticed that peritoneum was punctured under injury and in the cavity 1 litre fluid was present with fecal material present. In all 25 shots/pellets were recovered. The cause of death of the deceased was mentioned on account of shock and haemorrhage due to ante mortem injuries. ;