- (1.) KUNDAN Singh, J. This appeal has been preferred by the applicant Wasiq Ahmad and Ansar alias Chhotan against the judgment and order dated 4-4-79 passed by Shri D. L. Soni, the then III Add ). Sessions Judge, Saharan- pur, in S. T. No. 377 of 1979 whereby he convicted appellant Wasiq Ahmud under Section 302, IPC and sentenced him to life imprisonment, Appellant Ansar alias Chhotan has been convicted by him under Section 302/34, IPC and Section 25 of the Arms Act and has been sentenced to life imprisonment and 2 years' rigorous imprisonment, respectively, directing both the sentences to run concurrently.
(2.) THE prosecution case in brief, is that one AH Hasan, resident of village Jhabiran within police station Deoband, district Saharanpur, was murdered in which Anis Ahmad (the deceased in the present case) was prosecut ed along with others. On trial, Anis Ahmad was acquitted on 8-8-78 in that case, Wasiq Ahmad, the appellant, had appeared as a witness against Anis Ahmad in that murder. Wasiq Ahmad was very much annoyed from the acquittal of Anis Ahmad in the murder of Ali Hasan. On the fateful days i. e. 17-7-1978 Anis Ahmad had gone to a mosque to take bath while he was descending the stairs of the Chabutra at about 7 a. m. in return, and was on the Rasta. Shot was fired at Anis Ahmad and his cries and sound of shot attracted the witnesses Murtaza (PW 2) Islam (PW 3) Mustafa and Nasibuddin, who witnessed Wasiq Ahmad, Ziauddin, Islam alias Madoo, Ansar alias Chhotan and Mateen dragging the deceased to their Bagad (Campus) which was just opposite to the mosque. At that time Wasiq Ahtnad was armed with a gun, while Ansar alias Chhotan was having a country-made pistol THE witnesses interrupted Wasiq Ahmad but thwarted them off at the point of gun and the deceased was dragged into the Bagad where Wasiq Ahmad fired a shot at Anis Ahmad infront of house of Asghar, as a result of which he died instanteneously, Wasiq Ahmad fired 2-3 shots more in air, at the direction of Wasiq Ahmad, the appellant Ansar alias Chhotan placed a- country-made pistol in the hand of deceased Anis Ahmad and closed his fist and thereafter the accused left the place of incident. Murtaza narrated the entire episode to Mohammad Ayub the father of the deceased, but he could not go to see the deadbody of his son out of fear and danger from the accused persons, straightway he went to Police Station Deoband where a report was lodged at 8. 30 a m. on 17-8-78. The investigation of the case was handed over to Sub-Inspector Dhanpal Singh Bhati, who reached the spot the same day and arrested accused appellant Wasiq Ahmad from the village and recovered his licensed D. B. B. L. gun along with two live cartridges in its barrel and a belt of the cartridges, containing two discharged cartridges. He, also prepared a site plan of the venue, one country made pistol having discharged cartridges in its barrel was found in the fist of Anis Ahmad deceased by the Investigating Officer. The Investigating Officer also found a clay of Multani Mitti in the pocket of the Baniyan and two live cartridges in the fold of the underwear of the deceased Anis Ahmad. Thereafter the dead body was sent for postmortem examination to the mortuary where the autopsy was conducted by Dr. R. K- Agarwal (PW 5) who found four gun shot lacerated wound including three having exit marks. The Doctor also found two small contusions and four abrasions on the person of the deceased. The Investigating Officer also recorded the statements of the witnesses under Section 161, Cr. P. C. and after completion of the investigation he submitted charge-sheet against five persons including the two appellants. In all, the prosecution examined seven witnesses in support of its case. Out of them, Murtaza (PW 2) and Islam (PW 3) are eye-witnesses of the incident, while Ayub the father of the deceased is the informant who proved the first information report and was examined as PW 1 Dhanpal Singh Bhati (PW 4) is the Investigating Officer, who submitted charge-sheet against the accused persons, Dr. R. K. Agarwal (PW 5) bad conducted the postmortem examination on the deadbody of the deceased Anis Ahmad, while all other witnesses are of formal nature.
(3.) THE appellants denied the prosecution version. Wasiq Ahmad in his statement recorded under Section 3! 3, Cr. P. C. stated that on the date of occurrence at about 6. 30 a. m. Anis Ahmad came to his house, abused him and told that he has been acquitted in spite of his testimony against him and now he would kill him and immediately thereafter fired a shot but providentially he escaped the aim narrowly. Apprehending danger to his life he was keeping a gun with him at all times and It was in self-defence that he fired shot at Anis Ahmad from his gun which hit him and he died on the spot. THEreafter village people collected on the spot and the police took him into custody. THE other appellant Ansar alias Chhotan denied his presence on the spot and stated that he has been implicated falsely due to enmity. The learned Judge after thorough examination of the evidence on record found that no case of rioting under Section 147 and 149, I. P. C. was made out against co-accused Islam, Ziauddin and Mateen hence he acquitted them of the charges levelled against them. However, he found the appellants guilty of the charges levelled against them and convicted and sentenced each of them as aforesaid. It is against that order of conviction and sentence that the appellants have come up to the Court in the present appeal.;