- (1.) N .A. Moonis, J.;- The appellants above named have preferred separate appeal against the judgment and order dated 3.2.2007 passed by the learned Additional Sessions Judge, Court No.8, Meerut in S.T. No. 905 of 2004 under Section 302/34 I.P.C. whereby they have been convicted for life imprisonment and a fine of Rs. 5,000/- each. The appellant Riyasat has further been convicted under Section 25 of the Arms Act for three years rigorous imprisonment and Rs. 1,000/- fine and in default three months further rigorous imprisonment. The appellant Guddu alias Ejaj alias Ajimuddin has been convicted under Section 25/4 Arms Act for six months rigorous imprisonment and Rs. 500/- fine and in default of payment of fine to three months further imprisonment and both the sentences shall run concurrently.
(2.) THE prosecution case in a nutshell is that Maishuddin lodged a first information report on 3.9.2004 at 11.15 P.M. that at about 8.45 P.M. the complainant along with Arif were present in the house of Mujahid alias Munna situated in Mohalla Tarapuri, the appellant Riyasat who was residing earlier in the neighbour of Mujahid alias Munna came at his house and called out for him. The complainant and one Arif came out and on enquiry about the whereabouts of Mujahid alias Munna he disclosed that Munna was not at home. Hearing this Riyasat along with two other persons returned back. The complainant had seen that his brother-in-law Mujahid alias Munna and one Mursalin were coming towards his house and as soon his brother-in-law Muzajid alias Munna reached in front of the house of Noor Hasan all the three persons caught hold of him and threatened that he would not be spared as he used to make complaints against them to the police. Two persons started causing injuries with knives and Riyasat fired with a pistol at his brother-in-law. This incident was witnessed by the complainant, Arif, Mursalin and many other persons of the locality in the electricity light and had recognised the assailants and when they cried and raised alarms all the three persons ran towards 'Gaddho Wali Gali'. The first informant immediately took the injured to the medical hospital where the doctor declared him dead. On account of the incident there was a panic in the locality, the market was closed down and people had also closed their doors on account of the incident. The report was written by Raisuddin and on the basis of which a case was registered against the appellant Riyasat and two unknown persons under Section 302 I.P.C. as case Crime No. 394 of 2004 by Vijay Pal Singh, who was posted as Constable Clerk of police station Lisari Gate, Meerut (Exhibit Ka.1). After lodging of the first information report the police came into action and Station House Officer Rajendra Singh who took over the investigation reached at the spot and prepared the inquest report. He had collected plain and blood stained earth from the spot and also recovered cartridges, which were kept under sealed cover and prepared the site plan. Thereafter the dead body was sent for post mortem under seal through Constable Charan Singh and Constable Hoop Singh. He had recorded the statements of the complainant Maishuddin, Mursalin and Arif who have supported the prosecution case. On the basis of the statement of the witnesses the complicity of the appellant Riyasat, Guddu alias Alimuddin came to light and they were searched at their houses but could not be arrested. The appellant Riyasat was arrested on 9.9.2004 and was sent to jail. He stated about the complicity of Guddu also in the commission of the offence and after taking him on remand, at his instance a pistol was recovered on 15.9.2004. The appellant Guddu was arrested on 13.9.2004 and at his instance a blood stained knife was recovered and he stated that with this knife he had assaulted the deceased Mujahid alias Munna. Recovery memos of the weapons were prepared and marked as Exhibit Ka. 16. Clothes of the deceased, blood stained earth and the knife were sent for chemical analysis in a sealed cover of which report was received. One shirt and knife of blood Group 'B' were found and the same were exhibited as Exhibit Ka. 24. A case under Section 25/4 of the Arms Act was registered against accused/appellant Guddu. After receipt of the post mortem report and collecting material evidence against the appellants, the charge sheet was submitted. The charge was framed against the appellants on 19.1.2005 under Section 302 read with Section 34 I.P.C. The appellants pleaded not guilty and claimed trial. The prosecution in order to substantiate the charges has examined three witnesses of fact. P.W.1 Maishuddin the complainant who is the brother-in-law (Sala) of Mujahid alias Munna (deceased), P.W.2 Mursalin who turned hostile and P.W. 3 Arif the brother-in-law of the deceased. P.W. 1 Maishuddin has stated that he is the brother-in-law of Mujahid alias Munna and he was at his house. Mujahid alias Munna was married to his sister. He has reiterated the incident as mentioned in the first information report. In his cross-examination he has stated that at the time of incident his sister was present in the house when the accused/appellants had came to inquire about the whereabouts of the deceased, they were having weapons in their hands. When the appellants had started causing injuries to his brother-in-law he ran towards him while his sister was standing at the door. He knew Riyasat from before. The police had reached within 5/7 minutes and they had taken his brother-in-law on the police Jeep for medical treatment to the hospital where he was declared dead and from there they returned to the place of occurrence and had not gone to police station. At 9.15 P.M. he reached the hospital and within 10/15 minutes the doctor declared him dead. Then he returned to his house. He has further stated that there was electric light at the house of Noor Hasan and he had denied the suggestion that the first information report was registered at the police station and he had not seen the incident and had reached at the spot subsequently. P.W. 3 Arif who is the friend of the complainant had come along with to meet his sister. Arif is a tractor mechanic and resides at 15 paces from his house in Inchauli while the complainant is a bus mechanic and as such they know each other. When they reached the house of Mujahid they did not find him. Mujahid alias Munna is residing in Mohalla Tarapuri, which is at a distance of about 15 kilometres from Inchauli. It has been stated that Mursalin who is the friend of deceased Mujahid alias Munna was known to him since before as he used to come to his house at Inchauli. The house of Noor Hasan is 15/17 paces from the house of Mujahid alias Munna where the deceased was first struck by knife and as the deceased received the knife blows he along with Arif ran towards the house of Noor Hasan. After the shot was fired by Riyasat the accused persons ran away towards 'Gaddho Wali Gali'. The blood, which was found at the spot was collected by the police. When the victim was taken in an injured condition on a Jeep he was alive. At that time another brother of his Raisuddin had also reached there, who was working at Mumiyapur.
(3.) THE prosecution has examined another witness P.W.2 Mursalin who had admitted that he knew the deceased Mujahid alias Munna and the accused/appellant Riyasat and Guddu alias Ejaj. They were residents of Mohalla Tarapur and his neighbours but he has totally denied having witnessed the incident as well as the complicity of the accused/appellant hence he was declared hostile. In his cross-examination he had denied that any statement was recorded by the Investigating Officer under Section 161 Cr.P.C. He had also showed his ignorance that the appellants are of criminal nature and several criminal cases were pending against them.;