IMTIYAZ MURTAZA. J. - (1.) The present appeal has been filed against the judgment and order dated 3-9-1979 passed by Sri R. K. Gupta, Sessions Judge, Muzaffar Nagar in S. T. No. 282 of 1978 whereby the appellants are convicted under Sections 302/149 and 148 I.P.C. and sentenced to under go rigorous imprisonment for life and two years respectively. Their sentences were made concurrent by the trial Court.
(2.) The brief facts of the case as mentioned in the F.I.R. lodged by the informant Mirajuddin (P.W. 1) are that the father of the informant had enmity with Liyakat in connection with a piece of land. On 3-12-1977 his father had gone to Muzaffar Nagar on a Motor Cycle for collecting the payment of 'Gur' and thereafter he was returning along with his father at about 5.00 p.m. When they reached near the turning of Bewara ahead of Kakrauli near a mango grove Liyakat, Hashim, Shaukat, Mushtaq and Annu came out of the sugar cane field of Indra Sen and Liyaqat loaded his D.B.B.L. gun, Mushtaq Shaukat and Annu were armed with pistol and Hashim was armed with another D.B.B.L. gun. Seeing them, his father stopped the Motor Cycle on the road and ran towards the Bus Station to save his life. They chased him. His father entered into the sugar cane field of Cheta Gaderiya and fell down there. They had fired 5-6 shots on him. He died on the spot as a consequence. The occurrence was witnessed by Ali Mohammad and Kalu. The occurrence was narrated to him'by his younger brother Shamim. The assailants ran away towards Tewera. The complainant lodged a written report at police station Bhopa on 3-12-1977 at 8.05 p.m. The distance of police station from the place of occurrence is 8 miles. After registration of the F.I.R. P.W. 13 Virendra Singh started investigation. He recorded the statement of Head Moharrir Dhoom Singh and informant Mirajuddin. He reached at the place of occurrence at 10.30 p.m. and found there constables of police out post Kakrauli. He could not prepare the inquest memo due to insufficient light during night. He deputed two constables to look after the dead body. He prepared inquest'memo Ext. Ka-17, Photo lash Ext. Ka-18, Chalan lash Ext. Ka-19 and letter for post mortem examination. He despatched the dead body for post mortem examination through constables Ram Phal and Iqbal Hasan. He prepared the site plan Ext. Ka-20. He recovered three empty cartridges, 8 pellets, two ticklies, one button, one Chashma and Rs. 188/- from the pocket of the deceased. He also collected blood stained and plain earth and leaves from sugar cane field and prepared recovery memo Ext. Ka-21. He also prepared recovery memo of recovered article and also handed over the motorcycle, belonging to deceased to Mirajuddin through Ext. Ka-2. He recorded the statements of Shamim, Ali Mohammad, Kalu, Sheo Kumar and Arif. On 8-12-1977. He arrested Liyakat and Hashim. On the pointing out of Liyakat he recovered 11 cartridges in a belt and receipt No. 8 of Mushtaq and company and licence of the gun. Its recovery memo is Ext. Ka-23. Recovery memo of receipt and licence of the gun are Exts. Ka-34 and Ka-35. He recovered the gun of Liyakat Ext. 7 from Mushtaq and Company of Meerut. The barrel of the gun was broken. It was reported by this company. He deposited these articles in police station Bhopa. After conclusion of the investigation he submitted charge sheet Ext. Ka-25.
(3.) The post mortem of the deceased was conducted by P.W. 8 Dr. N. C. Sharma. He had noted the following ante mortem injuries :- 1. Lacerated wound 1 x x bone deep on the bridge of nose. Nasal bone is fractured under the injury. 2. Lacerated wound 1" x x muscle deep on the upper lip middle. 3. Lacerated wound 2 " x 1" x muscle deep on the left side face 1 above the chin. 4. Abrasion x " on the base of left palm. 5. Lacerated wound x 1 /10" x muscle deep on the base of left thumb. 6. Lacerated wound 1" x 3/4" x bone deep on the front of right fore arm, 1 above from right wrist. 7. Abrasion 1" x on the inner side of right upper arm, 2" above elbow. 8. Abrasion x on the right side chest, 2" below from right nipple at 8. 0' clock position. 9. Abrasion 3 x 2 on the right side chest, 4" below right nipple. 10. Two abrasions each measuring W x l/2" on right side chest, 1 below from inner end of right clavicle. 11. Four abrasions in an area of 2" x 1", each measuring x on the left side back of chest, 1" below from left scapula. 12. Gun shot wound of entry 1" x 1" on right side face. Blackening and tattooing was present. Three metallic shots recovered from bucal cavity. Mandible fractured. 13. Three gun shot wounds of exit on the left side chin each x . 14. Gun shot wound of entry 3/4" x 3/4" on the front of neck upper part. Blackening and tattooing present. 15. Gun shot wound of entry 3/4" x 3/4" on the outer side of neck (right) 1 away from injury No. 14. Trachea, Oesophagus and right carotid artery lacerated under the injury. Third and fourth cervical vertebrae fractured. Eight metallic shots recovered from the vertebrae. 16. Gun shot wound of entry x on the right side front of chest, 1" below from inner end of right clavicle directing backward, Upper lobe of right lung ruptured. One metallic shot recovered. 17. Two gun shot wounds of entry each measuring W x W on right side chest, 3" below from right nipple at 4 O' Clock and 6 O'clock position, directing backwards and downwards through lower lobe of right lung. One metallic shot was recovered from the lower lobe of right lung. One directed downwards to diaphragm and to right lobe of the liver. One shot recovered. 18. Gun shot wound of entry x " on front and inner side of right upper arm, 3" above the elbow x bone deep. No metallic shot recovered from this wound.;