G .P.SRIVASTAVA,J. - (1.) This appeal is directed against the judgment and sentence dated 7 -3 -2003 passed by the learned Addl. Sessions Judge, Court No. 1, Budaun in Session Trial No. 1130 of 1997, State v. Asadulla and Ishratulla, under Section 302 read with 34 IPC and Section 4/25 Arms Act Police Station Kotwali district Budaun whereby he convicted and sentenced the appellants under Section 302 read with 34 IPC to life imprisonment and a fine of Rs. 5000/ -. In default of payment of fine they were directed to undergo six months additional imprisonment. He has convicted and sentenced the appellant Asadulla to six months rigorous imprisonment under Section 4/25 Arms Act. All the sentences were made concurrent.
(2.) THE prosecution case in brief is that informant Smt. Ajaj Bano is resident of Mohalla Nagran P.S. Kotwali, Budaun. One Iqbal grand -son of informant on 19 -5 -1997 stabbed to death one Ajmatulla Khan alias Abdulla Khan at Zama Masjid crossing on the dispute of Rikshaw fare. The said Iqbal was in jail and the pairvi of his case was being conducted by deceased Rais Beg the son of informant. As a result of which the brothers of deceased Iqbal and his relations were inimical with the informant and his son deceased Rais Beg. On 23 -6 -1997 deceased Rais Beg was coming to his house after closing his shop of Battery charging situated behind the water works, the informant met him near Sabji Mandi, the deceased and the informant visited the house of CW 1 Wahid who is cousin father -in -law of deceased. At about 7.45 p.m. when the deceased and informant were going to their house and reached near the stall of one Khalil the accused appellants Asadulla Khan and Ishratulla Khan armed with Tabals surrounded the deceased Rais Beg and exhorted that he was doing pairvi and they will not allow him to remain alive. Both the accused appellants assaulted the deceased by Tabals who fell down after receiving injuries. The informant had a torch in her hand and deceased was carrying bicycle though both were going on foot. The occurrence was seen by the witnesses Shakeel Mistri and Intzar Beg. None chased the accused persons and they fled away. After some time police reached at the place of occurrence, took the deceased to hospital where he died due to the injuries. Informant Smt. Ajaj Bano went to police station Kotwali Budaun and submitted written report Ex Ka -1 at about 22.10 p.m. A chick F.I.R. Ext Ka -16 was prepared. A case was registered vide GD No. 55 time by 22.10 dated 23 -6 -1997, carbon copy of which is Ext Ka -17. The investigation was entrusted to Inspector Karam Veer Singh Bansal who prepared inquest report Ext Ka -7 and sent the dead -body for post -mortem. He prepared site plan Ext Ka -3 took blood stained and plain earth from the place of occurrence and prepared memo Ext Ka -4. He picked up Avon Cycle and one pair old Chappal and prepared memo Ext Ka -5. He inspected the torch of informant and prepared memo Ext Ka -6. He took the appellants on police remand on 6 -7 -1997. The accused persons got the weapons of assault recovered from a grave yard. The Investigating Officer sealed the same and prepared memo Ext Ka -13. The appellants told to the Investigating Officer that these are the abalas through which they committed murder of the deceased. The Investigating Officer prepared site plan of the place of recovery Ext Ka -4 and got a case registered against the appellant Asadulla Khan under Section 4/25 Arms Act and after conclusion of investigation the Investigation Officer submitted charge -sheet against the accused persons. The autopsy of the dead -body of the deceased was conducted by Dr. S.K. Agnihotri PW 2 on 24 -6 -1997 at about 12.40 hours. According at his opinion the deceased was aged about 23 years and died in between 12 to 18 hours from the time of the autopsy. According to his opinion the death of deceased was caused due to haemorrhage and shock as a result of ante -mortem injuries. The Doctor found following ante -mortem injuries on his person: (1) Incised wound 9 cm x 1.6 cm cavity deep on (Lt.) side of head 4 cm above (Lt.) ear. Blood clots present. (2) Incised wound 10 cm x 2 cm x cavity deep on the (Lt.) side of back of head. Clotted blood present. On opening skull cavity meningitis brain matter few cut in the same lined and blood (150 mg.) found in the cavity underneath bones found cut in the line of incisor. (3) IW 13 cm x 3 cm x bone deep on (Lt.) side of face and adjoining neck, wound started from (Lt.) angle of mouth to the Lt. side of neck. Muscles vessels. There is mandible found in the same line. Clotted blood present. (4) IW 9 cm x 2 cm x bone deep on (Lt.) side of forehead just above eyebrow. Clotted blood present. (5) IW 11 cm x 2 cm on the (Rt.) side of face adjoining neck. Muscles (Rt.) carotid sheath its contents Mandible found cut clotted blood present. (6) IW 4.5 cm x .6 cm x muscles deep present on (Lt.) side of neck. Clotted blood present. (7) IW 8 cm x 3 cm x bone deep on (Lt.) shoulder. Muscles (Lt.) clavicle bone cut on the some line clotted blood present. (8) IW 3.5 cm x .5 cm on the middle of front of chest. Muscle found cut in the some line. Clotted blood present. (9) IW 1.5 cm x .5 cm x muscle deep on (Lt.) side of chest 4 cm away from (Lt.) nipple at 2 O'clock position. (10) IW 1 cm x .5 cm x muscle deep on (Lt.) side of chest 14 cm below (Lt.) nipple of 6 O'clock position. Clotted blood present. (11) IW 3 cm x 2 cm x cavity deep over epigastria. (12) IW 3 cm x 1 cm x cavity deep 5 away from umbilicus on opening abdomen cavity found filled with 1 litre of blood with multiple cuts on large small bowels with two cuts on liver facial matter spilling in the cavity. (13) IW on (Rt.) side of chest with is muscle deep. Clotted blood present. (14) IW 2 cm x 1 cm x cavity deep on (Rt.) side of chest over mid axillary line opening chest cavity plerua with on found cut in the same line with 3 mg blood in the cavity. (15) IW 1.5 cm x 5 cm x muscle deep on (Rt.) scalp of back at L -1 long 1 cm away from mid line. Clotted blood present. (16) IW 1.5 cm x .5 cm x muscle deep on back 2 cm away from mid line. (17) IW 2 cm x .5 cm x bone deep on back of (Rt.) shoulder. Clotted blood present. (18) IW 1 cm x .5 cm muscle deep on potentate aspect of (Rt.) arm of 2 cm above elbow joint. (19) IW 2 -5 cm x .5 cm x muscle deep on just of (Lt.) arm. (20) IW 8 cm x 1 cm x muscle deep on the back of (Rt.) hand. (21) IW 2 cm x .5 cm muscle deep at the knuckle of right middle finger.
(3.) THE blood stained wearing pant, belt, shirt, baniyan, Angochha, Kachha, Tabij, blood stained and plain brick bats, Pharsa and Tabal were sent for serological examination to Vidhi Vigyan Prayogshala, Agra. A report was received which is Ext. Ka -20.;