Amar Saran, J. - (1.) -Criminal Capital Appeal No. 5530 of 2004 has been filed by the appellants Naim and Rafiq against the judgment of the Special Judge E. C. Act/Additional Sessions Judge, Bulandshahr dated 29.9.2004 convicting the appellants Naim and Rafiq to death under Sections 302/34, I.P.C., two years R.I. under Section 354, I.P.C. and 7 years R.I. and a fine of Rs. 10,000 under Section 452, I.P.C., in default of payment of fine, the appellants to undergo six months simple imprisonment. They have also been convicted under Section 25 (4) of the Arms Act and sentenced to two years R.I. The sentences were to run concurrently. A Criminal Reference No. 17 of 2004 has also been sent by the Sessions Judge, Bulandshahr for confirmation of the death sentence under Section 366, Cr.P.C. In connected criminal Appeal No. 5075 of 2004 the appellant Habib has been sentenced to imprisonment for life and a fine of Rs. 50,000 under Section 302/34, I.P.C. and in default of payment of fine to undergo further one year simple imprisonment. He has also been convicted to 7 years R.I. and a fine of Rs. 10,000 under Section 452 I.P.C. and in default of payment of fine to undergo six months simple imprisonment.
(2.) THE prosecution version was that on 24.10.1998, the deceased Dilshad had gone to the house of his brother Tahir and thereafter Tahir had gone back with Dilshad in order to drop him home. At about 8 p.m. in the night when they were reaching near the door of Dilshad's house, they heard the alarm of Dilshad's wife Smt. Shahida. THEy saw the appellants Naim and Rafiq armed with knives, catching hold of Shahida and pulling her. When Dilshad protested Naim and Rafiq left Shahida and clung on to Dilshad and told him that they would teach him a lesson. At that time the third appellant Habib arrived there. He is said to have exhorted the appellants to assault the "saale" and they had nothing to fear as he had arrived. THEreupon, Naim and Rafiq stabbed the deceased Dilshad with knives. On the cries of Dilshad and Tahir (P.W. 3), Salim, Irfan, Jamil and some other persons arrived there. On their alarm, the three accused persons left the deceased and climbed up the stairs of Dilshad's house, as they were being followed by the people of the mohalla. THEreafter they jumped down. After a chase the appellants Naim and Rafiq were caught hold of with knives and were given a beating by the people of the mohalla. However, Habib is said to have run away. When the informant Tahir returned, he found his brother lying in a seriously injured condition. In that state the injured-Dilshad was brought by the people of the mohalla to the hospital along with the appellants Naim and Rafiq, who had also received injuries while jumping down the roof on to the road. THE Doctor declared Dilshad dead on examining him. An electric light was burning in the house. Naim, Rafiq and the dead body of Dilshad were lying in the hospital surrounded by the residents of the mohalla. THE informant Tahir thereafter proceeded to P. S. Khurja Nagar, which was at a distance of 2 km., where he submitted a report (Ext. Ka-1) scribed by Shakir at 9.30 p.m. on the same date, i.e., 24.10.1998. Constable Clerk Onkar Singh, who was present in the police station prepared the chik report (Ext. Ka-7) on the basis of the written report given by the informant and also made a G.D. entry at 21.35 on 21.10.1998 (Ext. Ka-8). THE informant also deposited the knives recovered from the appellants Rafiq and Naim at the police station along with his report. THEir recovery memo was prepared by C. C. Onkar Singh. At that time P.W. 7 S.I. R. D. Pathak, who was on patrol duty, received a wireless message about the incident, according to which a man was injured and two miscreants had been arrested at the spot who were taken to the hospital at Khurja Nagar. Thereafter, the informant reached the hospital, where he was told that a person by the name of Dilshad had been assaulted by the three accused, of whom two who had been caught by the mohalla people, were present in the hospital. The accused persons were even bandaged as they had received injuries. Dilshad who had been assaulted by the miscreants had died. P.W. 7 S.I. R. D. Pathak got the inquest conducted by S.I. Raja Ram Verma (P.W.6). The body had been sent for post-mortem to the mortuary, where Raja Babu, Taiyyab and other people were keeping watch on the accused persons Naim and Rafiq. They were taken into custody by the police and brought to the police station. There was a report lodged by Constable Onkar Singh. He also recorded statements of C. C. Onkar Singh. After recording the statements of the witnesses Constable C. C. Onkar Singh, Smt. Shahida alias Shakila wife of the deceased and prepared exhibits. He visited the spot on 25.10.1998, prepared site plan (Ext. Ka-17). He also collected the plain and blood stained earth from the concrete farsh (flooring), which he sealed and in respect of which he prepared a recovery memo (Ext. Ka-18). On 26.10.1998, he obtained the post-mortem report of Dilshad. He recorded the statement of the Constable, who carried the dead body. Post-mortem examination was conducted by P.W. 4 Dr. Awadhesh Kumar on 25.10.1998 at the mortuary of the District Hospital, Bulandshahr. He prepared post-mortem report (Ext. Ka-6). The age of the deceased was about 25 years and he had died about 3/4 days earlier. The deceased was of average built and rigor mortis was present over the whole body. Eyes/mouth were half open. In the nose and mouth there was some clotted blood. He found the following two ante-mortem injuries : 1. Incised wound 2 cm. x 1 cm. x cavity chest deep on back of left side chest 12 cm. below inferior angle of scapula. 2. Incised wound 1-1/2 cm. x 1 cm. x abdominal cavity deep on left lateral part abdomen upper part just below rib.
(3.) ON internal examination, he found left pleura and left lung cut. There was 1-1/2 litre blood present in the pleural cavity. Spleen was cut. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. He stated that the injuries No. 1 and 2 were result of some sharp edged weapon such as knife. The injuries could have been caused on 24.10.1998 at about 8 p.m. The injuries were sufficient in the ordinary course of nature to cause death of deceased Dilshad. Apart from P.W. 4 Dr. Awadhesh Kumar, who conducted the post-mortem as above, P.W. 5 Constable Clerk C. C. Onkar Singh, who prepared the chik F.I.R. and made G. D. entries and S.I. R. D. Pathak, P.W. 7, I.O. of this case whose testimonies have been described above, P.W. 6 S.I. Raja Ram Verma was the remaining formal witness, who conducted the inquest on the body of Dilshad, which was marked as (Ext. Ka-12). The body was thereafter handed over to Constable Mahendra Singh and Constable Ram Pal Singh for taking it for post-mortem. He had gone to conduct the inquest on receiving the memo from the doctor.;