Imtiyaz Murtaza, J. - (1.) ALL the above appeals arise out of the judgment and order dated 12.5.2004, passed by Addl. District and Sessions Judge, Court No. 3 Aligarh, whereby the appellant Aqueel Ahmad is convicted under Section 302, I.P.C. and sentenced to death, appellant Irfan, Chaudhary Aleem, Ashiq Ali and Shakir are convicted under Section 302/149, I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 2,000. The appellants are further convicted under Section 148, I.P.C. and sentenced to undergo rigorous imprisonment for two years.
(2.) CRIMINAL reference is for the confirmation of death sentence of appellant Aqeel Ahmad. Brief facts of the case, mentioned in the report lodged by Ahmadur Rahman Sherwani at police station Civil Lines, Aligarh, are that some construction of lane from the crossing of Amirnisha to goshtwali gali was going on from the quota of Khwaja Aleem, M.L.A. A banner was fixed by Vyapar Mandal, Amirnisha and on the banner, name of his son Favad Khan Sherwani was mentioned as General Secretary. On 16.12.2001 at about 4 p.m. Shakir, Sabhasad had taken out the banner. He came at the house of informant armed with D.B.B.L. gun alongwith Aqeel Ahmad who was also armed with a D.B.B.L. gun, Irfan Driver, Chaudhary Aleem, Shakir son of Shabbir and Ashiq Ali. His sons Favad and Shahood Ali Khan were present there and they started abusing them and challenged saying that how he could dare to fix the banner and set the banner on fire. His sons told him that since there was a festival next day they would talk about it later on. Hearing this, companions of Shakir Sabhasad exhorted and Shakir and Aqeel Ahmad started firing from their guns which hit both his sons. He alongwith Iqbal Ahmad, Farooq Ahmad, Shah Alam, Jalaluddin, Mohd. Shabir, Maroof Ahmad Khan, Majid Ali Khan, Subhash Chandra and others who were purchasing in the nearby shops came to rescue them and accused persons firing from their country made pistols and guns went away. His younger son Favad Khan died on the spot and injured Shahood died in the Hospital during treatment. Shah Alam had also received fire arm injuries and he was taken to the Medical College. The report was registered at the police station Civil Lines on 16.12.2001 at 6.25 p.m. and the distance of the police station is 1 Km. from the place of the occurrence. After the registration of the report, Shri B. K. Tiwari, S.H.O. Civil Lines started the investigation. He recorded the statement of scribe of the report Om Prakash Chaturvedi, informant and Iqbal Ahmad. Thereafter, he reached at the place of occurrence and prepared the site plan on the direction of the informant which is Ext. Ka-21. He had also prepared site plan of the place where the banner was fixed, which is Ext. Ka-22. He had also prepared the recovery memo of the blood stained and plain earth and also prepared the recovery memo of empty cartridge 12 bore and one bullet. He had also prepared the recovery memo of half burnt banner, the recovery memos are Ext. Ka-23, 24 and 25. He had recorded the statement of witnesses, thereafter he reached the Medical College and instructed Sub-Inspector N. L. Arya to prepare the inquest memo of the deceased persons Favad and Shahood. After the preparation of inquest memos the dead bodies were sealed and handed over to the constables for post mortem examination on 17.12.2001. He recorded the statement of Farooq Ahmad, Jalaluddin, Shakir son of Shabbir, Majid Ali and Iqbal Ahmad. Accused Shakir was arrested and his statement was recorded. After the investigation he submitted the charge-sheet against the accused persons which is Ext. Ka-26. On 5.1.2002, statement of Shakir, Sabhasad was recorded and on 10.1.2002 statement of accused Aqeel Ahmad was recorded and they were taken on police remand and on the pointing out of Shakir, Sabhasad a gun was recovered and recovery memo was prepared which is Ext. Ka-27. On the pointing out of Aqeel Ahmad a gun was recovered and recovery memo is Ext. Ka-28. On 25.1.2002, a D.B.B.L. Gun No. 17524 was recovered from the shop of Choudhary Gun House Arms and Ammunition Dealer, Malviya Market, Aligarh, recovery memo is Ext. Ka-38. A written application was given by the proprietor of the Gun House Surendra Singh. The gun was deposited by Ashiq Ali, the recovery memo is Ext. Ka-30. After the submission of the charge-sheet the case was committed to the court of Sessions.
(3.) IN order to prove its case, the prosecution examined 12 witnesses : P.W. 1 Ahmadur Rahman Sherwani, informant of the case, P.W. 2 Iqbal Ahmad alias Shambhu, P.W. 3 Maroof Ahmad Khan, P.W. 4 Om Prakash Chaturvedi, P.W. 5 Dr. Naseem Alam, P.W. 6 Dr. Rehan Ahmad, P.W. 7 Dr. V. K. Singh, P.W. 8 Dr. Paritosh Mohan, P.W. 9 Natthu Lal Arya S.I., P.W. 10 Parnochar Shri Niwas, Head Constable, P.W. 11 Constable Yogendra Singh and P.W. 12 B. K. Tewari, INvestigating Officer of the case. P.W. 1 Ahmadur Rahman Sherwani has supported the version of F.I.R. and stated that he lives in his house situated in Amirnisha Dodhpur. He lives on the first floor and on the ground floor there is a market. A road was being constructed from Amirnisha crossing to goshtwali gali from the quota of Khwaja Haleem, M.L.A. There was a banner hoisted on Amirnisha crossing which showed that the road was being constructed from the quota of Khwaja Haleem with the co-operation of Vyapar Mandal. The name of his younger son Favad was also mentioned on the banner as a General Secretary. Shakir, Aqeel, Chaudhary Aleem, Irfan, Ashiq Ali and Shakir Hussain son of Shabbir took out the banner and all of them came to his house variously armed. Shakir and Aqeel were armed with D.B.B.L. gun and rest of the accused were armed with country made pistols. At that time he was present near his house, his sons Favad and Shahood were also standing there. The accused persons called his younger son Favad and told him that how he dared to fix the banner and as he was the Sabhasad and only his name could be mentioned on the banner. His elder son Shahood told him that next day was Eid and they could talk later on. The accused had set on fire the banner, his children were hardly 10-15 steps away from there. On the exhortation of other accused, Shakir and Aqeel fired from their guns and his both sons fell on the ground and remaining accused were abusing and firing and thereafter they ran away. He rushed towards his sons. Favad died on the spot and the other son was conscious. Both had received fire arm injuries. He took his children to the Medical College. At the time of occurrence, Iqbal Ahmad, Farooq Ahmad, Jalaluddin, Maroof Ahmad, Mohammad Sabir, Majid Ali and Subhash Chandra and other persons also reached there. Due to the firing of the accused Shah Alam had also received injuries. Saud had also died during the operation, in the medical college. He got the report scribed by Om Prakash Chaturvedi and lodged it at the police station F.I.R. is Ext. Ka-1.;