ARVIND K.TRIPATHI, J. - (1.) THE Criminal Appeal (Capital Case) No.5505/10 has been filed on behalf of Mohd. Ibrahim s/o Mohd.Shafiq and Naseem Ahmad s/o of Mohd. Ibrahim. Criminal Appeal (Capital Case) No.5219/10 has been filed by Sajjad Husain, Aftab, Karar Husan and Fasad Husain, all sons of Zameer Ahmad in S.T. No.575 of 2000 under Section 147, 148, 302/149 I.P.C. PS. Dhampur, District Bijnor arising out of Case Crime No.359 of 2000 connected with S.T. No.576/2000 (State vs. Fasad Husain under Section 25 of the Arms Act, PS. Dhampur District Bijnor in Case Crime No.404/2000, S.T. No.578/2000 (State vs. Naseem) under Section 25 Arms Act, PS. Dhampur, District Bijnor in Case Crime No.402/2000. These Criminal Appeals have been preferred against the judgement and order of conviction dated 30.7.2010 awarding death sentence to all the accused appellants for the offence under Section 302/149 I.P.C. They were also convicted and sentenced under Section 147 I.P.C. to undergo one year's R.I. and under section 148 I.P.C. for three years' R.I. However, they were acquitted under Section 120B I.P.C. Accused appellants Naseem Husain and Fasad Husain were acquitted under section 25 Arms Act. All the three Sessions Trials were decided by a single judgement and order. There is no appeal against the order of acquittal. Reference No.9 of 2010 is for confirmation of death sentenced as provided under Section 366 Cr.P.C. These two appeals and reference are being decided jointly by this order.
(2.) SHRI P.N. Mishra, learned Senior Counsel assisted by Shri I.M.Khan, appeared for the appellants, Shri D.R. Chaudhary, learned Government Advocate for State and Shri Gaurav Kakkar, learned advocate appearing for the complainant. Heard counsel for the parties and perused the record.
(3.) IN brief the prosecution case is that the informant Sabir Husain lodged a written report at the Police Station Dhampur with the allegation that on 28.5.2000 at about 5.45 P.M. when his brother Mubarak Husain was returning from the Nehtaur Market and reached in front of the house of Sharafat Husain s/o Mohd. Shafi on Kharanja road, the accused Mohd.Ibrahim, Naseem, Sharif Ahmad, Aizaz Husain, Sajjad Husain, Aftab Husain, Karar Husain, Fasad Husain and Zakir of his village surrounded his brother Mubarak Husain. Naseem and Sharif Ahmad were armed with country made pistols, Sajjad Husain was having licensed gun and they fired indiscriminately at Mubarak Husain. Mubarak Husain fell down on the earth. Mohd. Ibrahim attacked by pharsa. His brother Mubarak died on the spot. When his son Shah Alam came for rescue of his brother Mubarak Husain, the accused Aizaz Husain, Aftab Husain, Sajjad Husain, Karar Husan, Fasad Husain and Zakir fired on Shah Alam by their guns and country made pistols and Sajjad fired with a licensed gun causing injuries to him. Showing country made pistols, they shouted whether there was any one who would dare to come before them. After hearing firing a stampede took place and terror was created. Villagers Sharafat Husain, Akram Husain, Mohd. Shafi and Dilshad dared to come there and they challenged the accused persons, then the accused persons went away from the spot. Thereafter the injured Shah Alam was taken to the hospital where he was declared dead. Then written report was submitted and the case was registered at Police Station Dhampur at 7.20 P.M. bearing Case Crime No.359/2000. The investigation was taken up by S.H.O. Shri V.K.Verma and he inspected the spot and prepared site plan and the dead body of Shah Alam and Mumbarak Husain were taken into custody by the police. The inquest report of the dead body of Mubarak Husain was prepared by S.I. Maha Singh and Inquest report of the dead body of the Shah Alam was prepared by S.I. Nand Kishore on 25.8.2000. The dead bodies were sealed and the same were sent to the District Hospital for postmortem examination alongwith the necessary papers. Postmortem was conducted at the District Hospital at Bijnor on 26.8.2000 on the dead body of Mubarak Husain at 12.25 P.M. and on the dead body of Shah Alam at 1.30 P.M. The doctor found five firearm entry wounds. One firearm exit wound and one abrasion on the body of Mubarak Husain. The ante mortem injuries on the dead body of Mubarak Hussain are as follows: 1- Firearm wound of entry 2 cm. x 2 cm. x through and through (communicated/with injury no.2) in right face, 1 cm. Below and away from angle of mouth. Blackening present over area of 5 cm. X 5 cm. Around wound. 2- Firearm wound of exit 10 cm. X 13 cm (on left face) through and through communicated with injury no.1 Maxilla upper jaw, base of skull and zygomatic bone (bone of left lower orbit) and left frontal bone got fractured. Brain lacerated. 3- Firearm wound of entry 3 cm. X 3 cm x muscle deep on back of left side neck. 3.5 cm. away and behind from base of left ear and bullet recovered from the wound. Blackening over area of 5 cm. x 5 cm. Around wound present. 4- Firearm wound of entry 3cm x 2 cm. X cavity deep on left anterior axillary's fold 13 cm. Above nipple at one O' clock position directed down. On exposure left second rib found fractured left lung got lacerated, diaphragm ruptured, about one litre blood in chest cavity. Two ticklies and 71 pellets recovered from chest cavity and left lung tissue. 5- Firearm wound of entry on back of left chest 3 cm x 3 cm x cavity deep, directed obliquely forward causing fracture 5th rib left side and laceration of left lung diaphragm and rupture of liver. One bullet recovered from liver tissue. 6- Firearm wound of entry 2.5 cm. X 2.5 cm x cavity deep on left abdomen 12 cm away from umbilicus (lain placing over area of 6 X 6 cm around wound) at 3 O'clock position. On exposure 1-1/2 liter blood found in abdomen cavity, Bullet recovered in abdominal cavity. Small Intestine got ruptured. 7- Abrasion 2 cm. X 1 cm surrounded by multiple tattoo marks over area of 10 cm. X 12 cm on right side lower part 10 cm. above knee joint. ;