V.K.SHUKLA,J. - (1.) PRESENT criminal appeal has been filed against the judgment and order dated 5th of November, 1988 passed by the Sessions Judge, Basti in Sessions Trial No. 28 of 1987, State Vs. Mohd. Haneef and others, holding appellants guilty for the offence punishable under Section 302/34 of Indian Penal Code and sentencing them to undergo imprisonment for life and also finding appellants guilty for the offence punishable under Section 308/34 of the Indian Penal Code and sentencing them to undergo three year's rigorous imprisonment each and the sentences to run concurrently.
(2.) PROSECUTION story, as has been unfolded in the first information report lodged by Newas Ali on 28th of October, 1986 at 7 PM at Police Station Purani Basti that lies at the distance of 9 kilometers from the place of incident, that the complainant is a resident of village Bagdeeh and has the passage from the front of the house of the accused Mohd. Haneef for going to his house and same was continuously being used by him and his family members for a long time. On the fateful day at about 4 PM the informant's son Akram, daughter -in -law Nazma Khatoon and he himself were coming back from their field after harvesting the paddy crop to their house and at the said point of time when they reached in front of the house of Mohd. Haneef, Mohd. Haneef started abusing them and protested their passing from the front of his door. Such action of Mohd. Haneef was resisted by the complainant's son by mentioning that it was the passage and which way he should go. Thereupon, Mohd. Haneef exhorted his sons namely Akbar Ali and Shah Ali to assault and pursuant thereto Akbar Ali and Shah Ali armed with fawra and lathi reached there and started assaulting Akram and Nazma Khatoon and when complainant went to save, he was also assaulted by them. On assault being made alarm was made and at the said point of time Ram Mani Pandey, Pakri, Chitari and Sant Ram of village Karma came for their rescue and then the assailants ran away. Mohd. Haneef was attacking with stones. After the said incident in question has taken place report in question was got scribed by Udai Shankar Chowdhary and first information report was registered on the basis of written report as Case Crime No. 338 of 1986 under Section 323, 336 and 504 of the Indian Penal Code. All the three injured persons were got medically examined on the same day on the request of police based on chitti majrubi prepared on 28.10.1986 by HM Lat Bux and Akaram was admitted in the hospital and he ultimately succumbed to his injuries on 30th of October, 1986 and information was sent to the police station and, accordingly,then the case registered formerly as Case Crime No. 338 of 1986 was converted into one under Sections 323, 336, 504 and 304 of the Indian Penal Code on 31st of October, 1986. Before that as the investigation of the case was already handed over to the IO Shri A.K. Sharma, the Investigating Officer on 29th of October, 1986 recorded the statements of Nazma Khatoon, Sant Ram Yadav and Udai Shankar Chowdhry and on the pointing out of all these three incumbents spot inspection report was also prepared. From the spot in question ordinary earth and blood stained earth was collected and was kept in separate sealed containers. From the spot blood stained lungi of Akaram was also recovered and its fard was also prepared. Thereafter, attempt was made to find out the accused persons but they were not found on the spot and thereafter statement of Ram Mani Pandey was recorded and then at Sadar Hospital Basti statement of complainant Newas Ali was also recorded and Akaram could not be examined as he was not in his senses and subsequently he died. After his death inquest was got done and body was sent for autopsy and after autopsy report was received, then case was converted under Section 304 of the Indian Penal Code as already noted above and, thereafter, after taking due permission from the court accused persons were also examined in the jail and then statement of SI Khursheed Ahmad was recorded and statement of Panch witnesses was also recorded and then the charge -sheet in question was filed on 6th of November, 1986. After the charge -sheet in question has been filed as the case in hand was exclusively triable by the Court of Sessions, the matter was committed to the Court of Sessions for facing of the trial. The matter, after committal, came up before the Sessions Judge Basti and Sessions Judge Basti on 24.02.2987 proceeded to frame the charges under Section 302/34 IPC for causing death of Akaram and for causing hurt to Nazma Khatoon and Newas Ali, charges under Section 308/34 IPC and the accused appellants in their turn denied their participation in the crime in question and requested for being tried. In order to bring home the charges, prosecution examined PW -1 Newas Ali, PW -2 Nazma Khatoon, PW -3 Udai Shankar Chowdhry, PW -
(3.) RAM Mani Pandey as witnesses of fact and Dr. A.K. Jain, who conducted autopsy on the body of Mohd. Akaram, was got examined as PW -5, Dr. R.C. Parashar, who examined the injuries of Newas Ali, the informant and Musamat Nazma Khatton, was got examined as PW -6, PW -7 was Shri A.K. Sharma, the Investigating Officer who investigated the case and Dr. G.N. Prasad, who conducted the X -ray, was examined as PW -8 and he has proceeded to mention that parietal bone and temporal bone of the head of Mohd. Akaram was fractured and as far as Newas Ali is concerned, his occipital bone was fractured. Shri Khursheed Ahmad was examined as PW -9, who has proceeded to testify in respect of the inquest proceedings and other proceedings. 4. After the said statements of witnesses have been recorded, then the statement of accused persons under Section 313 of Cr.P.C. have been recorded. In the statement made under Section 313 Cr.P.C. Akbar Ali, Shah Ali are under denial mode and Mohd. Haneef has proceeded to mention that on the fateful day Newas Ali was taking out mud and was erecting barha and when Jannatunnisan and Sarwar Ali went there to resist them, then at the said point of time the family members of Newas Ali started hitting them and it was further said that thereafter in defence marpeet took place. It was also mentioned therein that he has got himself medically examined along with Sarwar Ali and Jannatunnishan and application in that regard was moved by him before the Superintendent of Police.;