- (1.) J. C. Gupta, J. The above named six appellants have filed this appeal against the judgment and order dated 3-3-1987 in Sessions Trial No. 714 of 1983 whereby they have been convicted and sentenced to imprisonment for life under Section 302/149 I. P. C. , to five years R. I. each under Section 307/149 I. P. C. and one year R. I. each under Section 148 I. P. C. Sentences are to run concurrently.
(2.) THE prosecution story in brief is that all the appellants are resident of village Paisa Khera, Police Station Pawayan District Shahjahanpur. Faiyaz Khan P. W. 1 is also a resident of the same village. It is alleged that election for the post of delegate of the Co-operative Society of Nyaya Panchayat Badehla was to be held. Faiyaz Khan and accused Jumman Khan both were candidates in that election. Jumman Khan pressurized Faiyaz Khan to withdraw his candidature in his favour but Faiyaz Khan refused to do so. Jumman Khan then threatened him with dire consequences. Further allegation of the prosecution is that on 6-9-1983 one Bankey sweeper was taking his pigs through the passage in front of house of the accused Jumman. The accused told Bankey not to take his pigs from that route. Bankey did not listen. He was assaulted by accused Jumman Khan and others. Bankey lodged report against Jumman Khan and others wherein Faiyaz Khan was cited as a witness for Bankey. Accused party asked Faiyaz Khan not to give evidence against them but Faiyaz Khan told them that whatever he had seen he would depose. Jumman Khan and others were thus bearing enmity against Faiyaz Khan. It is alleged that on 25-9-1983 at about 5. 30 p. m. Faiyaz Khan P. W. 1 alongwith his brother Eijaz Khan, deceased of this case and Wasim Khan P. W. 2 were sitting under a neem tree in front of the house of Tauqir Khan. They were talking with each other. Accused Jumman Khan came there and asked Faiyaz Khan to file affidavit in his favour in the case instituted by Bankey sweeper. Faiyaz Khan did not pay any heed to this request of accused Jumman Khan, whereupon accused started abusing him. Eijaz Khan and Wasim Khan asked accused Jumman Khan to stop absuing. Accused Jumman Khan went back to his house saying that he would see them just now. Within a few minutes thereafter accused Jumman Khan armed with rifle, accused Sami Ullah, Ismail Khan, Laddan armed with D. B. B. L. guns and Abrar, Shafayat armed with S. B. B. L. guns came there from south. Accused Jumman Khan challenged and incited his companions to kill Eijaz Khan and others. All the accused persons started firing from their respective arms. Jumman Khan any how saved himself by going behind the neem tree. Deceased Eijaz Khan and Wasim Ullah however sustained fire-arm injuries at the hands of accused persons. Witnesses Ahmad, Masroor Ullah, Mohd. Shafi, Majid Khan and many other villagers reached there. On their challenge, the accused persons ran away towards south. Deceased Eijaz Khan on receiving fire-arm injuries fell down under the thatch of Tauqir Khan and died on the spot.
(3.) JUMMAN Khan went to the police station in the same evening and lodged oral First Information Report (Ex. Ka. 1) at 9. 30 p. m. Case was registered and investigation ensued. The Investigating Officer went to the place of occurrence and found the dead-body of Eijaz deceased lying under the thatch of Tauqir Khan. The dead-body was taken into custody and sent to mortuary for post- mortem examination after holding inquest. Investigating Officer then prepared site plan Ex. Ka. 11. In this site plan, the place where deceased with the witnesses was talking, has been indicated by letter 'a'. The place where dead-body of deceased was found has been shown by letter 'f'. The distance between 'a' and 'f' is noted as 12 paces. The place from where accused persons opened fire has been shown by letter 'b'. The distance between 'a' and 'b' is indicated as 30 paces. Letter 'c' denotes the place from where witness Maskalla Khan had witnessed the incident from his house, while letter 'd' denotes the place from where witness Mohd. Safi witnessed the incident from his house. The distance between 'b' and 'c' is 11 paces while between 'b' and 'd' is 15 paces 'e' is the place from where witnesses Ahmad Hasan Khan and Majid Khan saw the incident. This place was situated at a distance of 18 paces from the scene of occurrence. It may also be relevant to mention here that when the Investigating Officer inspected the scene of occurrence he found no tikli, pellets or empty cartridges either at place 'a' or 'b' or 'f' or in between. No drop of blood was also found either near about the place 'a' or in between 'a' and 'f'. Blood was found by the side of dead- body in the Chhappar of Taquir Khan. Statements of witnesses were recorded and on completion of investigation, charge-sheet was submitted against all the six nominated accused persons. Before the trial Court prosecution produced six witnesses in all, of whom only Faiyaz Khan P. W. 1 and Wasim Khan P. W. 2 were witnesses of fact. P. W. 3 Dr. P. S. Varma is the Medical Officer who conducted autospy on the deed-body of deceased Eijaz Khan on 27-9-1983 at 3. 30 p. m. Deceased was aged about 18 years and probable time of death was reported to be about two days. Rigor mortis had passed off from both the upper and lower extremites. Body was decomposed. Following ante-mortem injuries were found : (1) Multiple fire-arm wounds of entry on right side chest from in an area of 25 cm. x 10 cm. and eight fire-arm wounds of entry on left side chest in an area of 17 cm. x 10 cm. Each wound was measuring 0. 3 cm. x 0. 3 cm. x chest cavity deep. Margins were inverted and lacerated. No blackening or tattooing was seen. Direction was from front to back horizontally. (2) Five fire-arm wounds of entry on front of left arm in an area of 16 cm. x 8 cm. , each measuring 0. 3 cm. x 0. 3 cm. Margins were inverted and lacerated. All were muscle deep. No blackening or tattooing seen. Direction was front to back horizontally. (3) Four fire-arm wounds of entry on front of right arm, two on right wrist dorsal side and five on left side. Each wound was 0. 3 cm. x 0. 3 cm. x muscle deep. Margins were lacerated and inverted. No blackening and tattooing found. Direction was front to back horizontally. The internal examination revealed that pleura was lacerated on both sides. Right and left lung were also lacerated and about one litre of blood in left chest cavity and half litre on right chest cavity was found. Cause of death was shock and haemorrhage as a result of fire-arm injuries. In all 23 small metallic pellets were recovered from the body. Post-mortem report of Eijaz Khan is Ex. Ka. 2. In his deposition before the Court Dr. P. S. Varma stated that death of Eijaz in the evening of 25-9-1983 was probable.;