PRAFULLA C.PANT,SUDHANSHU DHULIA,J. - (1.) THIS appeal arises out of a judgment and order dated 31.7.2000 passed by 3rd Additional Sessions Judge, Haridwar in Sessions Trial No. 115 of 1995, by which trial court has convicted the present appellants, namely Roju (since deceased), Shamshad, Ejaj, and Liyaqat under Sections 302 read with Section 149, 307 read with Section 149, 325 read with Section 149, and under Section 323 read with 149 of Indian Penal Code, 1860 (from hereinafter referred to as IPC). Each one of the above four convicts has been sentenced to imprisonment for life under Section 302 / 149 of IPC, and fine of Rs. 2,000/-, in default of which, each one of the accused was directed to undergo further imprisonment for a period of eight months, further a rigorous imprisonment for a period of seven years under Section 307/149 IPC and fine of Rs. 1,000/-, in default of which, further imprisonment of four months was also given and a rigorous imprisonment for three years under Section 325/149 IPC and fine of Rs. 500/-, in default of which, each one of the accused was directed further imprisonment for two months, and rigorous imprisonment of six months under Section 323/149 IPC.
(2.) HEARD Sri S.P.S. Panwar, Senior Advocate, assisted by Mr. H.C.Pathak, Advocate for the appellants and Sri Prabhakar Joshi, Brief Holder for the State. The story of the prosecution, as narrated in the First Information Report, is that on 7.7.1994, brother of the complainant (Sarvar), whose name is Jabbar, had gone to irrigate his agricultural land. The land adjacent to that of Sarvar belongs to one Roju, son of Rahmu, who hails from the same village. When the complainant's brother (Jabbar) reached his land, he noticed that the “Naali” by which water used to reach his field was broken, as a result water could not reach the agricultural land of Sarvar. At this Jabbar asked Roju as to why he has done this. In reaction, Roju started abusing Jabbar, and thereafter threatened him that he better run away or he will be killed. Jabbar, thereafter retreating from the scene, stated that he will now have to call the police! After this incident, the same day at about 4 P.M., as soon as Jabbar reached his house, Roju son of Rahmu and all his sons, namely, Ejaj, Jabbar, Shamshad and Liyaqat surrounded Jabbar outside his house, and after abusing him said that he will be killed here itself. As a result of the alarm raised by Jabbar, his mother Jumia, sister Nabila, brother Shahjada, maternal uncle Deenu, cousin Noora (son of maternal uncle) and one Asgari (neighbour) came out of their houses and enquired from the assailants as to “why are you beating Jabbar?”, to which Roju directed his companions, “What are you looking? Finish all of them.” Thereafter, in order to kill all these people, Ejaj Ali and Jabbar fired from their “Katta” (country made pistol). Shamshad who was armed with “Tabal” and Liyaqat and Roju who were armed with iron rod (Saria) started hitting Jabbar and others. On this, many persons of the same village, such as, Anwar, Shahbuddin, Safdar, Kripal and some persons of the nearby village Mewari, namely, Ikram Ali, Isbuddin came towards the scene of crime and saved Jabbar with much difficulty, and thereafter, Deenu (PW 7) and other persons of the village took injured persons to Roorkee Hospital for treatment. However, as a result of the injuries sustained in this “MAAR PEET” son of Deenu (PW 7), namely, Noora died in the hospital in the night itself and other injured remained admitted in the Hospital. The complainant (Sarvar) further stated in the First Information Report that he was member who could look after the injured persons. He further stated that son of his Mama, whose name is Noora, has already died and arrangements had to be made for his burial, and as such, there has been a delay in lodging of the First Information Report. The body of the deceased Noora is still in the Hospital. He further stated that what has been stated in the FIR has been told him by his mother Jumia, his brother Jabbar and his “Mama” Deenu.
(3.) AS per the F.I.R. the incident had taken place on 7.7.1994 at about 4 P.M. The First Information Report was lodged at about 6.30 A.M. the next morning and the time when the deceased (Noora) died is 4 A.M. These are all admitted facts. The First Information Report (Exhibit A-1) was lodged at Police Station Manglore, Haridwar, which was registered as Crime No. 228/1994 against the accused persons, namely, Ejaj Ali, Jabbar, Shamshad, Liyaqat and Roju under Section 147, 148, 149, 302, 307 IPC. The matter was investigated by PW5 Sub Inspector Maqsood Hasan, who after interrogating the witnesses and on completion of the investigation, submitted a charge-sheet (Exhibit A-15) against accused persons in respect of offences punishable under Sections 302/149, 307/149, 325/149, 323/149.;