Om Prakash -VII, J. - (1.) THIS criminal appeal has been preferred by the accused/appellant -Mohd. Nurulla against the judgment and order dated 6.6.2008 passed by the Additional District & Sessions Judge, Court No. 11, Varanasi in Session Trial No. 191/2006 (State v. Mohd. Nurulla and others) convicting and sentencing the appellant for the offences punishable under section 302 I.P.C. for life imprisonment alongwith a fine of Rs. 10,000/ -, and in default of payment of fine, six months' additional imprisonment. The Trial Court has also decided Session Trial No. 192 of 2006 (State v. Manish Pandey) in crime No. 176/2005 under section 3/25 Arms Act and Session Trial No. 193 of 2006 (State v. Manoj Kumar Singh Chauhan) in crime No. 182/2005 under section 3/25 Arms Act. As the accused of these cases have been acquitted, the present appeal has been preferred by the appellant -Mohd. Nurulla only against the impugned judgment and order, as mentioned above.
(2.) THE facts of the case are that one Abdullah (cousin brother of deceased Sharif Ahmad) moved a written report (Exbt. Ka -1) at the Police Station Chet -ganj, Varanasi on 6.7.2005 mentioning therein that a registered agreement to sale dated 31.5.2004 was entered into between the appellant (Mohd. Nurulla) and the deceased (Sharif Ahmad) regarding the plot No. 99/2, House No. J 15/65 D -3, Mohalla Alaipura, Police Station Jaitpura measuring about two and half biswa and at the time of execution of agreement to sale, Rupees Four Lakhs had been paid by the deceased. The deceased was also in possession over the plot in question and was doing building material business. With ill intention, Mohd. Nurulla was threatening to the deceased to return the disputed plot. The accused/appellant was not willing to execute the sale deed in favour of the deceased, therefore, the deceased had filed a Civil Suit on 30.5.2005 before the Civil Court, Varanasi against the accused/appellant. The informant, Mufis Ahmad and Javed Ahmad all had gone to the chamber of Advocate Divya Prakash Srivastava at his residence at C -10/39, Ziyapura, Chetganj, Varanasi in connection with said Civil Suit. After discussing the matter with the Advocate, as soon as all of them came out of the chamber of the Advocate, accused/appellant opened two fires on Sharif Ahmad at about 10.15 p.m. with intention to kill him, resultantly, Sharif Ahmad received injuries and he fell down and when they moved ahead alarming, accused/appellant ran away waivering the fire arm in the lane of Ziyapur Masjid. They have recognized the accused/appellant in Electric light. The deceased was immediately taken on tempo to Singh Nursing Home, Maldahiya where the Doctor referred him to B.H.U. At B.H.U. Hospital, the doctor attending the deceased declared him dead. Keeping the dead body in mortuary, the informant had gone to lodge the First Information Report (in short 'FIR') The local police lodged the FIR at crime No. 136/2005 under section 302 I.P.C. on the same day at 23.45 p.m. Vide (Exbt. Ka -2). Carbon copy of General Diary entry is (Exbt. Ka -3). The Investigating Officer investigated the spot, took the sample of simple and blood stained earth and prepared fard (Exhbt. Ka -6 and Exbt. ka -7). Inquest report (Exbt. Ka -19) has been prepared at B.H.U. mortuary on 7.7.2005. Other police papers, i.e., form No. 13, photo lash, letter to Chief Medical Officer, letter to S.H.O. Police Station Lanka, Varanasi (Exbt. Ka -20 to 23) were prepared. Postmortem of the dead boy of the deceased was conducted and report was prepared on 7.7.2005 at 1.30 p.m. Simple and blood stained earth alongwith clothes recovered from the body of the deceased were sent for chemical examination. Report submitted by the Analyst is (Exbt. Ka -24). During course of investigation on 4.9.2005, co -accused Manish Pandey was arrested alongwith a country -made 315 bore Katta, whose description is mentioned in detail in fard recovery (Exbt. Ka -9). Similarly, co -accused Manoj Kumar Singh Chauhan was arrested on 12.9.2005 by the police and a country -made 315 bore tamancha was also recovered from his possession. Details of which is mentioned in fard recovery (Exbt. Ka -10). Details of dead and live cartridges have also been mentioned in Exbt. Ka -9 and 10. Exbt. Ka -9 and 10 have been prepared on the spot at the relevant time and formalities have been completed. On the basis of fard recoveries, FIR against co -accused Manish Pandey at crime No. 176/7005, under section 3/25 Arms Act on 4.9.2005 and at crime No. 182/2005 under section 3/25 Arms Act on 12.9.2005 against co -accused Manoj Kumar Singh Chauhan was lodged. The Investigating Officers have also prepared site plan in crime No. 136/2005, 176/2005 and 182/2005, respectively. After completing the investigation, the Investigating Officer submitted charge -sheet in crime No. 136/2005, under sections 302 and 120 -B, IPC against accused Mohd. Nurulla, Manish Pandey and Manoj Kumar Singh Chauhan. The Chief Judicial Magistrate concerned committed the case for trial before the Sessions Court.
(3.) ACCUSED appeared and charge under sections 302 read with section 34 IPC was framed against accused Mohd. Nurulla, Manish Pandey, Kishan Verma, Manoj Kumar Singh Chauhan. Charge under section 120 -B IPC was also framed against accused Manish Pandey, Manoj Kumar Singh Chauhan, Kishan Verma, Mohd. Nurulla and Haider Ali. In session trial No. 192/2006 charge under section 3/25 Arms Act was framed against Manish Pandey and in session trial No. 193/2006 charge under section 3/253/25 Arms Act was framed against Manoj Kumar Singh Chauhan.;