- (1.) ONKARESHWAR Bhatt, J. This appeal has been preferred against judgment and order dated 8-6-1981 passed by the then VII Addl. Sessions Judge, Meerut in Sessions Trial No. 13 of 1980. All the four appellants, namely, Aizaz, Ahmad Hasan, Jan Alam and Imlak have been convicted under Section 302/34 IPC and sentenced to life imprisonment. They have also been convicted under Section 307/34 IPC and sentenced to seven years rigorous imprisonment. The sentences were ordered to run concurrently.
(2.) SRI S. P. S. Raghav, learned counsel for the appellants and SRI M. C. Joshi, learned A. G. A. for the State have been heard and record of the case has been carefully perused. All the four appellants are inter related and they lived in village Ikla Rasoolpur, police station Parichhatgarh, District Meerut. Informant of the case Bashir Mohammad PW 1 as well as the deceased Ismail also lived in the same village. About 2-1/2 years earlier to the date of occurrence one Riazu disappeared from the village and could not be traced out. A case was registered at the police station against appellant Aizaz and others in which the deceased was doing Pairvi. The appellants had asked the deceased several times not to appear as a witness in that case or to do Pairvi of the case. Ismail did not agree to it due to which the appellants bore enmity with him. In Ikla Rasoolpur, there is a school, namely, Deeni Islami Madarsa. A committee consisting of villagers of Ikla Rasoolpur and village Khanpur used to manage the affairs of the school. The deceased and the informant were members of the committee. There was some dispute regarding the post of Treasurer. Therefore, a meeting was to take place on 4-11-1979 in village Siyal. The appellants as well as the villagers of Ikla Rasoolpur knew about the said meeting. On the date of occurrence, i. e. 4-11-1979 the deceased Ismail and informant Bashir Mohammad started from village Ikla Rasoolpur for attending the meeting on a motor cycle. The deceased was driving the motor cycle while the informant was a pillion rider. At about 12 in the noon when they reached near the field of Prakash Khazoori there was a turning of the road. The deceased slowed down the speed of the motor cycle. At that very time, all the four appellants emerged from the field of Prakash. Appellants Aizaz, Ahmad Hasan and Jan Alam who were armed with country made pistols fired towards the informant and the deceased on exhortation of the appellant, Imlak. The appellant Imlak was armed with spear. The fire did not hit either the deceased or the informant. However, the deceased became panicky and motor cycle fell down on the road. The deceased left the motor cycle and his chappal and ran from the field of Khairati towards the village. All the four appellants chased him. Informant, Bashir Mohammad also ran towards them raising cry for help. After pursuing the deceased for about 100 yards the appellants caught hold of the deceased and fell him on the ground. The three appellants pushed him on the ground while appellant Aizaz fired at the deceased on the neck. Yakoob PW 2, Jan Mohammad PW 3 and one Hafizuddin alias Fauju and Sahimuddin came over there. The appellants thereafter went away in the southern direction. Ismail was dead and blood had also fallen at the place. Bashir Mohammad prepared a written report at the place of occurrence. He went to the police station on cycle and lodged it at the police station Parichhatgarh on 4- 11-1979 at 1 p. m. The distance of the police station from the place of occurrence is three kilometers.
(3.) INVESTIGATION of the case was taken up by Nepal Singh PW 5 in whose presence the case was registered at the police station. The dead body of the deceased was sent for post-mortem examination which was conducted on 5-11-1979 at 3. 15 p. m. by Dr. K. D. Sharma PW 4. The Doctor found gun shot wound of entry 2 cm x 2 cm on the left neck 7 cm below & behind the left ear. Blackening and charring were present around the wound, and gun shot wound of exit 4 cm x 4 cm on front of neck left side upper part. There was fracture of right lower jaw and also fracture of third rib and vertebra. 118 pellets and wadding piece were recovered from the right portion of the neck. In the opinion of the Doctor, the deceased could have died on 4-11-1979 in the forenoon and the injuries were caused in very close contact from the body. The occurrence had taken place in the broad day light at 12 noon. The deceased was murdered in the field of Naim from which placed blood was also recovered by the Investigating Officer. The place of occurrence has not been challenged by the defence. The Investigating Officer had also found motor cycle and a pair of chappal belonging to deceased some 16 paces towards south of the place of occurrence. The Investigting Officer reached the place of occurrence at 3. 05 p. m. on 4-11-1979 itself. The prosecution story has been unfolded and supported by three witnesses, Bashir Mohammad PW 1, Yakoob PW 2 and Jan Mohammad PW 3. Bashir Mohammad was accompanying the deceased on same motor cycle. Yakoob was near the place of occurrence while he was going for purchasing house hold articles from the market of Parichhatgarh. Jan Mohammad has his field near the place of occurrence where he was cutting green fodder. The two eye-witnesses viz. Yakoob PW 2 and Jan Mohammad PW 3 are distantly related to the appellants and seemingly had no animus against the latter. They had been put to searching cross-examination but nothing has came out in their testimony which could shake the veracity of their testimony. It has come in their evidence that they heard the shot and saw the deceased being pursued by the four appellants and ultimately the deceased was pushed to ground near the field of Naim where appellant Aizaz fired at the deceased on the neck. The medical evidence corroborates the statement of eye-witnesses. The presence of three eye-witnesses was accepted by the trial Court and there is no reason to disagree with that finding.;