ANIL KUMAR AGARWAL,J. - (1.) ALL the three connected appeals by the three appellants Babbu, Hanif and Khursheed have been preferred against the impugned judgement and order of conviction and sentence dated 27.1.1982, recorded by Sessions Judge, Moradabad in S.T. No.407 of 1981, State Vs. Khursheed and others. By the impugned judgment, appellant Khursheed was convicted u/s 302 I.P.C. whereas rest of the two appellants, Babbu and Hanif, are convicted u/ s 302/34 I.P.C. All of them, however, have been sentenced to imprisonment for life for that crime. Hence, this appeal.
(2.) BACKGROUND facts/ prosecution allegations, which has germinated these appeals were narrated in the written FIR Exhibit Ka-4 and was deposed during the trial by the two fact witnesses Mohd. Jamil,P.W.3, maternal uncle of deceased Iqram and Smt. Noor Jahan,P.W.4, mother of the deceased. From the perusal these evidences it is evident that informant Mohammad Jamil, P.W.3, was the brother-in-law of one Mohd. Imran, father of the deceased Iqram. Mohd. Imram and his wife PW4, had nine children including three sons and six daughters. Three years prior to the present incident, Mohd. Imran had expired. His widow, PW4 and her children resided in Awas Vikas Colony, in Lajpat Nagar locality in their own house. Iqram (deceased) was the sole bread earner of the entire family. All the appellants also resided in the same locality of the deceased and two of the accused Hanif and present appellant Babbu were the pals of Khursheed. These appellants wanted to be friendly with the deceased because he had young damsel sisters and for that reason they were pressuring the deceased to work with them, but since deceased had sensed their sinister motives, he at all times thwarted their design by refusing to abide by their requests. In the presence of the informant Mohd. Jamil, P.W.3, also accused and the deceased had a conversation about it and accused had threatened the deceased by warning him that if he will not work with them, they will not allow him to reside in Lajpat Nagar locality. Informant used to visit his sisters and nephews for enquiring about their welfare of and on. On the incident date, 11.6.1981, informant P.W.3 visited his widow sister Noor Jahan, when deceased Iqram was also present. At 10 p.m., accused Khursheed, (since demised) called the deceased, who came out of house and told him as to why they are behind his soul and in between two of them a triadic verbal onslaught ensued, which also attracted informant and his widow sister Noor Jahan, who both came and stood by main door. Meanwhile, other eye witnesses Nazim and Chhotey also arrived there. Khursheed was armed with a knife. At that moment present appellant Babbu instigated his other associates, on which accused Hanif wrapped his arm around the deceased and accused Khursheed pierced his knife in deceased abdomen. Informant and others tried to apprehend the assailants but they made their escape good from the incident scene. Pressing the sustained stab wound, deceased staggered inside his house and fell down on a cot. His injury was tied with a bed cover (chadar). This incident was seen by the witnesses in the light of the bulb, which was lightning at the door of the deceased's house. Although injured/deceased was carried to the hospital in a rickshaw ,but no sooner it arrived at the hospital , deceased lost the battle for his life and expired. His dead body, therefore, was put in the hospital mortuary. Informant Mohd. Jamil P.W. 3, thereafter, dictated the FIR Ext. Ka-4, to scribe Hafiz Shami Khan and after verifying it's contents informant signed it and then he carried his FIR to police station Katghar, District Moradabad, where he lodged his FIR as crime no.379,u/s 302 IPC, same day at 11.45 p.m. against the three named assailants.
(3.) H .C.Nirbhay Shanker Saxena P.W.2, registered the crime by preparing chik FIR Exhibit Ka-2, who also inked the crime registration G.D. Exhibit Ka-3. Inquest on the cadaver of the deceased was performed by S.I. Syed Saeeq Hasan on 12.6.1981 in the hospital, who had prepared inquest memo and other relevant documents of photo lash, challan lash etc., which are Exhibits Ka-5 to 8. Sealing the dead body, the cadaver was handed over to Ram Kumar and Jagdish to be carried to the mortuary for autopsy purposes. S.I. Dal Chand P.W.8 commenced investigation into the crime recorded 161 Cr.P.C. statement of the informant at the police station itself and thereafter proceeded for the spot. Spot inspection was conducted by the I.O., who prepared the site plan Exhibit Ka-11. Place "C" was shown as the place where the bulb was lighting at the time of the incident. The said bulb was seized and recovered and recovery memo Exhibit Ka-9 was sketched. At place "B", injured deceased had lied down on the cot and therefore bed sheet and mattress (gadda), material Exhibits 2 and 3, were blood soaked and consequently I.O. seized both of it by slating recovery memo Ext. Ka-12. Thereafter, the eye witnesses were interrogated and subsequent thereto accused Hanif was arrested from his in-laws house. The weapon of the assault,Exhibit-1, stained with blood was also recovered by the I.O. at the pointing out of said accused and recovery memo Exhibit Ka- 10, in that respect was prepared. Site plan regarding the place of the recovery is Exhibit Ka-13. Concluding investigation, I.O. had charge sheeted the accused on 26.6.1981 vide Exhibit Ka-14. ;