- (1.) U. S. Tripathi, J. The above two appeals have been preferred against the judgment and order dated 2-7-1980 passed by 1st Additional Sessions Judge, Farrukhabad in ST No. 78 of 1980 convicting the appellants Noor Mohammad, Mohd. Masi and Bashir under Section 302 read with Section 34 IPC and sentencing each of them to undergo imprisonment for life and acquitting them under Sections 147, 148, 324 read with Section 149 and Section 323 read with Section 149 IPC and acquitting appellants Mohd. Shami and Ayub.
(2.) THE prosecution story, briefly stated, was as under: Munna deceased (24) was nephew of Rais Bux (PW 1) and was residing in the house adjacent towards east of his house. A long standing enmity was going on between Munna deceased and Noor Mohammad appellant. Proceeding under Section 107/117 Cr. P. C. had also taken place between them. Noor Mohammad and others were larger in number and they often transacted quarrel with Munna deceased. On the morning of 1-12-1979 vocal quarrel had taken place between ladies of the houses of the parties. At that time Munna deceased was not at his house. He came to his house at about 12 noon. It was 10th day of Moharram. At about 1 p. m. Liyakat Hussain (PW 3) came to his house and asked him to accompany him to Sekhpur to see Tazia fair. Munna deceased told him that he would accompany him after taking bath. Saying it he proceeded to the well to take bath. When he came out of his house in the lane adjacent towards north of his house, appellants Noor Mohd. his brother Ayub his sons Masi and Shami and Bashir came there. Bashir was having lathi and other accused persons were having knives. They told Munna deceased that he claimed himself more and they would eliminate him. Hearing it Munna deceased ran towards west. The above accused persons chased him and surrounded him on the Rasta towards west of the house of the deceased and started inflicting injuries on him with their respective weapons. Rais Bux (PW 1), Liyakat Hussain (PW 3) Farid (PW 6), Suleman, Riyajuddin and others rushed to the spot and tried to apprehend the accused persons. Accused Mohd. Masi inflicted knife blow on Liyakat Hussain (PW 3) and Bashir inflicted lathi blow on Rais Bux (PW 1) and all the accused made there escape Munna deceased received severe injuries. Liyakat Hussain (PW 3) got prepared report (Ext. Ka-1) of the occurrence from Iqrar Khan and taking Munna deceased and other injured persons came to police station, Kamalganj where he lodged report (Ext. Ka-1) at 2. 05 p. m. Chik FIR (Ext. Ka- 2) was prepared by Head Constable Babu Lal (PW 2), who made and endorsement of the same at GD report (Ext. Ka-3) and registered a case against 5 accused persons under Sections 147, 148, 323, 324 and 307 IPC. Investigation of the case was taken up by Sri Arvind Misra, IO (PW 7) who interrogated Munna deceased at the police station. This condition was serious and he was sent to Primary Health Centre, Kamalganj for medical examination. On reaching the hospital he was declared dead by Dr. Arvind Misra (PW 7) who sent information to this effect to SHO PS Kamalganj.
(3.) ON receipt of above information the case was altered under Section 302 IPC. The Investigation Officer interrogated Rais Bux (PW 1), Liyakat Hussain (PW 3) and sent them to Primary Health Centre, Kamalganj for medical examination where they were medically examined by Dr. Arjun Kumar (PW 4) who found one contusion on the back of right elbow of Rais Bux (PW 1) and prepared injury report (Ext. Ka-6 ). He also examined Liyakat Hussain (PW 3 and found one incised wound over right forearm and prepared injury report (Ext. Ka-5 ). The IO then proceeded to Primary Health Centre, Kamalganj alongwith S. I. J. P. Singh and other Constables where he conducted inquest of the dead body of the Munna deceased and prepared inquest report (Ext. Ka-10 ). He also recovered one blood stained bandage lying near the dead body of Munna deceased and prepared recovery memo (Ext. Ka-11 ). He sealed the dead body of Munna deceased and handed over to Constable Shanti Swaroop (PW 8) for taking it for post mortem. Thereafter, the IO reached the spot and interrogated other eye-witnesses including Farid (PW 6 ). On the next day the IO inspected place of occurrence and prepared site plan (Ext. Ka-17 ). He also took into possession blood stained and simple earth from the spot and prepared recovery memo (Ext. Ka-18 ).;