K.Narayan, J. - (1.) FIVE accused, namely, Shakoor, Abdul Ghaffoor, Abdul Hakim, Abdul Rahim and Jumma were put to trial for the offences under sections 147, 148, 302 and 323 read with section 149 IPC in S. T. No. 217 of 197K of District Moradabad. By the judgment and order dated 23-1-79, accused Shakoor, Abdul Gaffoor were given benefit of doubt and were acquitted, while the remaining persons, namely, Abdul, Hakim, Abdul Rahim and Jumma were found guilty and convicted of the offence under sections 147, 302/149 and 323/149 IPC and were sentenced to imprisonment for life under section 302 IPC imprisonment for one year under section 147 IPC and to imprisonment for three months under section 323 read with section 149/34 IPC by another order of the same date. Three accused have come up in appeal both against their conviction and sentence.
(2.) WE have heard the learned counsel for the appellants and A.G.A. at length and gone through the record of the case along with them. The prosecution contention, in brief, seems to be in the form that Habibul Rehman, the informant of the case, had passed possession of the land measuring 1.86 acres for Rs. 600/- only in the year 1974 for a period of three years in favour of Jumma, accused appellant and his son Hanif, who was not an accused in the case. It appeared later on from the evidence that this transfer, if it could be so called, was in favour of Smt. Shakoonat wife of Hanif. The name of actual person is not very material as that goes to the same family. This transfer is not disputed by the defence also. The prosecution case further has been that it was agreed that Jumma & Hanif would leave the land after three years, that is, in 1977. but they declined to leave the land in the month of Asarh. Upon their refusal to leave the land Habibul Rahman transferred the same by way of sale in favour of Sharif Ahmad, deceased in the case, for a consideration of Rs. 10500/-. Jumma on the other hand (may be Smt. Shakoonat) brought a suit before the Munsif in respect of the land. For the occurrence, the contention of the prosecution has been that on 14-10-1977. Habibul Rahman, and Sharif Ahmad had gone to harvest Chari crop standing in the land in dispute and plough the same at about 4 in the morning and for that matter had also taken a tractor of Sardar with them. After ploughing the land, Habibul Rahman and Sharif Ahmad, Abdul Rahman and Majid went to enjoy smoking in the field of Chhotey. Sharif Ahmad was armed with his gun also. At about 7 A.M. Shakoor, Abdul Ghaffoor, Abdul Hakim, Abdul Rahim alias Pahalwan and Jumma arrived there and challenging said that they would let Sharif has full possession that day. They caused injury with the help of Lathi and Tabal despite protest by Abdul-Rahman resulting in spontaneous death of Sharif Ahmad and certain injuries to Habibul Rahman also.
(3.) HABIBUL Rahman was examined by PW 1 Dr. Subhash Tyagi on 14-10-1977 and simple injuries were found upon his person. The body of Sharif Ahmad was sent for post mortem examination which is said to have been conducted by Dr. S.P.Srivastava. Dr. Srivastava does not seem to have been examined by the court. The post mortem report which might have been prepared by him is Ex. Ka 20 subject to the observations that may be made in respect of this procedure, it may be mentioned that Sharif Ahmad had a number of contusions, lacerated wound and incised would upon his person as noted in the report of the post mortem examination. The prosecution had examined 8 witnesses in all before the trial court. PW 1 Dr. Subhash Tyagi had conducted the medical examination PW 2 Habibul Rahman, PW 3 Mazeed, and PW 4 Abdul Rahman were examined as witnesses of fact of the occurrence. Out of these, PW 3 Mazeed did not support the prosecution version though he was put leading questions also. His evidence, therefore, does not lead us anywhere, PW 4 Abdul Rahman has also been disbelieved by the trial court because he had already given an affidavit somewhere else disowning the case of the prosecution. Of course the witness in the witness box had denied to have given any such affidavit but it will need more heavy reasons, which are absolutely wanting in this case, to think that the trial court was mistaken in disbelieving his testimony. Apart from the above situation, it may also be mentioned that even we are not prepared to accept his testimony as his conduct in the witness-box has not been satisfactory and reasonable. He too had tried to state that two more persons had come during the occurrence of assault and these persons, though he had not seen their faces, appear to be Shakoor and Abdul Ghafoor. Since these' two, according to him had arrived after his departure from the spot, they might have either come from the direction where he was going, in which case, he will have an opportunity to see their faces while crossing even from a distance or they would come from a different direction in which case their faces will be towards the place of occurrence and the witness himself. This situation itself indicates that this witness was not stating true facts and was trying to save or undo some part or implicate some body else.;