- (1.) M. C. Jain, J. This appeal has open preferred by eight appellants. They are (1) Abdul Waheed (2) Vakil Khan (3) Abdul Hai (4) Babu Khan (5) Mukhtiyar (6) Javed Khan (7) Shafiq Khan and (8) Mohd. Hafeez. The judgment assailed in the appeal has been rendered by Sri. B. B. Khare, the then II Additional Sessions Judge, Farrukhabad on 31-3-1981 in Sessions Trial No. 274 of 1975. The accused appellants Abdul Hai, Abdul Waheed and Shafiq have been convicted under Section 148 IPC and each of them has been sentenced to two years' rigorous imprisonment. For the offence of rioting the remaining five accused appellants have been convicted under Section 147 IPC and each sentenced to undergo rigorous imprisonment for one year. Abdul Waheed has further been convicted under Section 302 IPC for the murder of Abbas Khan and sentenced to life imprisonment. The remaining seven accused appellants have been convicted for the murder of Abbas Khan under Section 302 read with Section 149 IPC and each sentenced to life imprisonment. Then, all the eight accused appellants have been convicted under Section 302 read with Section 149 IPC for the murder of Israr Khan and under Section 323, read with Section 149 IPC for causing injuries to Ashfaq Khan, Ishtiyaq, Subrati and Razzak Khan with sentence of life imprisonment for the former offence and one year' rigorous imprisonment for the latter. The sentenced awarded to each individual accused have been ordered to run concurrently.
(2.) THE incident took place on 5-11-1974 at about 8 p. m. in village Sarfabad at a distance of 4 miles from P. S. Kamalganj, District Farrukhabad. THE report by oral narration was lodged by Razzak Khan PW 1 at the concerned police station the same night at 10. 50 p. m. The broad features of the case as coming to surface from the F. I. R. and the evidence adduced at the trial may be set forth. The accused persons are either Khandanis or friends. The accused Abdul Waheed had constructed his residential house after demolishing the village Panchayat Ghar. The informant and other villagers complained about it to the village Pradhan Abdul Rauf. However, he was under the influence of Abdul Waheed and remained silent over the matter, not taking any note of the complaint made to him. Then, the informant's brother Abbas and his cousin brother Shabbir filed a civil suit in the Court of Munsif in that regard about 6 months before the present incident. Temporary injunction and commission were issued in that case. However, despite service of the injunction order, the accused Abdul Waheed did not desist from his action and continued to construct his residential house by demolishing the Panchayat Ghar. Abbas and Shabbir then moved the Munsif's Court for taking action against him for dis-obedience of the injunction order 6-11-1974 was fixed in that matter. Abdul Waheed became increasingly annoyed with Abbas and Shabbir. In the fateful night at about 8 p. m. (on 5-11- 1974) Razzak Khan informant PW 1, Abbas, Israr and Subrati were sitting on the well and were talking about the date in the aforesaid civil suit. A lantern was glowing in the Chhappar (thatch) of Abbas. The accused persons came over there hurling abuses and held out that they would kill anyone who would go for pairvy of the said case. Abbas protested and retorted that he had filed the suit and would also do the pairvy in the case which was pending before the Court and they (accused) should not lose their cool. Enraged, Abdul Waheed gave out that he would see Abbas then and there irrespective of the litigation. Abdul Waheed, Abdul Hai and Shafiq Khan accused were armed with guns and the rest had lathis and dandas with them. Hearing the hue and cry, Ashfaq, Ishtiyaq, Yasin Khan, Ali Daraj Mohd. Yaseen and others arrived at the scene and advised Abdul Waheed to let the law its own course and the litigation be decided by the Court. Abdul Waheed and Shafiq Khan then gave a call of exhortation, whereupon Babu Khan, Vakil Khan, Mukhtiyar, Javed and Mohd. Hafeez started assaulting Abbas and others with lathis and dandas. Ishtiyaq and Ashfaq then also plied lathis from the side of the complainant in self-defence. The accused Abdul Hai. Abdul Waheed and Shafiq then told their companions to move aside and that they themselves would kill and finish the matter. So saying, these three opened fire from their guns. The shot fired by Abdul Waheed hit Abbas, Israr was also hit by the fire. Abbas fell down at a distance of about 10-15 paces and died a little later. The accused persons then ran away. On the lodging of the F. I. R. , Head Constable Chatur Singh PW 5 wrote down the Chik F. I. R. and made entry in the GD registering the case. Razzak Khan PW 1 had also collected three fired cartridges from the spot which he had taken to the police station and deposited there. The same were sealed at the police station by Head Constable Chatur Singh PW 5.
(3.) THE investigation of the case was entrusted to SI Visheshwar Singh PW 7 who was present at the police station at the time of the lodging of the F. I. R. He recorded the statement of Razzak Khan informant PW 1 and other injured witnesses who had been taken there. He reached the spot on 6-11- 1974 and busied himself with the activities connected with the further investigation of the case like preparing of the site plan and inquest report of the dead body of the deceased. He took search of the houses of the accused Abdul Hai and Shafiq and took their licensed guns in his possession and sealed them with the preparation of Fards. Blood stained and simple earth was collected by him from the spot. He also took in his possession the licensed gun of Abbas, deceased and deposited the same at the police station. THE statement of other witnesses were recorded by him. He also made a report for sending the licensed guns of Abdul Hai and Shafiq, which had been collected by him, with fired cartridges (deposited at the police station by the informant) to the ballistic expert for comparison. Dr. G. M. Solanki PW 2 had examined injuries of Ashfaq, Ishtiyaq, Subrati and Razzak on 6-11-1974 between 8. 45 a. m. and 10 a. m. The details of the same are given below: Ashfaq Khan. Abraded contusion 1" x 7/10" on forehead extending upward from right eyebrow. Scab formation present. Injury simple in nature and caused by friction and with blunt objection. Duration about one day. Ishtiyaq Khan. Lacerated wound 9/10" x 1/10" in mid line of scalp, 2 1/2" above the root of nose. Clotted blood present injury simple in nature and caused by blunt object. The duration was about half day. Shubrati (1) Lacerated wound 1 1/2" x 4/10" x 4/10" on right side of scalp, 2" above the right eye-brow. Clotted blood present. (2) Abrasion 3/10" x 1/2 on left side of head, 1 1/2" above the left eye-brow. Scab formation present. (3) Contusion of 2" x 2 1/2" on anterior part of left forearm, extending downward from the elbow joint. Colour red. (4) Abrasion of 8/10" x 1/2" on right medical mabalons. Scab formation present. According to the Doctor injuries No. 1 to 4 were simple in nature. Injuries No. 1 and 2 were caused by friction. Duration of the injuries was about half day. Razzak Khan. Abraded contusion 1 1/2" x 4/10" on left side of scalp. 4 1/2" above the left pinna. Scab formation present. Injury simple in nature and caused by blunt object. Israr Khan The injuries of Israr Khan were examined on 6-11-1974 at 1 p. m. in District Hospital, Fatehpur by Dr. M. Z. Evat, Court witness No. 1 who was Medical Officer on emergency duty. The following injuries were found on his person: (1) Gunshot wound 1/4" x 1/4" x skin deep on right side front of chest, 1/2" internal to nipple. No blackening or tattooing. (2) Two gunshot wounds, each measuring 1/4" x 1/4" x skin deep on the outer aspect of right arm in the middle. (3) Three gunshot wounds, each measuring 1/4" x 1/4" x skin deep on the outer aspect of right forearm each 3" apart. (4) Multiple gunshot wounds, each measuring 1/4" x 1/4" x skin deep to abdominal cavity deep on the lateral aspect of right side lower part abdomen and reaching upto right ingenial region. No blackening or tattooing was seen. All the injuries were simple except injury No. 4 which was kept under observation. X-ray of abdomen, right lateral and lower part including ingenial area was advised. Injuries were caused by firearm duration of which was one day.;