- (1.) The instant appeal is directed against the judgment and order dated 26.3.1983 passed by the IIIrd Additional Sessions Judge, Rampur whereby the appellants have been convicted for life imprisonment under Section 302 read with Section 149 I.P.C., under Section 147 I.P.C. for six months rigorous imprisonment and under Section 148 I.P.C. for one year rigorous imprisonment in S.T. No. 16 of 1982 arising out of case Crime No. 168 of 1982, police station Swar, district Rampur. All the sentences were directed to run concurrently. The appellant no.1 Abdul Hakeem and appellant no.5 Ahmad Hasan have died and their appeal stood abated by this Court vide order dated 5.10.2015, hence we are now proceeding to hear the appeal against the surviving appellants, namely, Shamsher, Nazeer Ahmad and Mohammad Mustaqeem.
(2.) Sri N.I. Jafri, Advocate has appeared on behalf of the appellant nos. 3 and 4 Nazeer Ahmad and Mohammad Mustaqeem and Sri T.A. Khan, learned counsel has appeared on behalf of the appellant no.2 Shamsher.
(3.) The genesis of the prosecution in short conspectus is a first information report was lodged by Maqbool on 24.9.1981 at 4 P.M. in respect of an incident occurred at noon on the same day against the accused/appellants, namely, Hakeem Pradhan, Shamsher, Nazeer Ahmad, Mohammad Mustaqeem and Ahmad Hassan stating therein that two years before the occurrence the brother of complainant Ashique and Zainul Abdin son of Abdul Hakeem Pradhan were challaned in a case of robbery. The dispute took place between the two during the pendency of case of robbery and since then Zainul Abdin was bearing grudge against his brother Ashique. His brother Ashique had got arrested Hakeem Pradhan by the police of Swar district Rampur as he was running factory of manufacturing illegal country made pistols. For all these reasons the accused Hakeem Pradhan and others were bearing enmity with his brother Ashique. On account of this enmity Ashique had left the village and was living in district Moradabad due to fear of the accused persons and was earning his livelihood by pulling rickshaw. He was released from jail as he was arrested by the police in some case. After releasing from jail he was living in village Majra Evaz. On the fateful day when the complainant along with his brother Ashique and brother-in-law Haneef were returning after cutting grass from his field near Dhav the appellants appeared suddenly from the sugar cane field, Hakeem Pradhan, Shamsher both sons of Ahmad Hassan having ballam accused Nazeer Ahmad son of Budha and Mohammad Mustaqeem son of Abdul Hakeem Pradhan were having tabal and Ahmad Hassan son of Ali Shah was having lathi. Hakeem Pradhan extorted them that Ashiq will taste the consequence of getting his factory raided by the police and getting conviction of Zainul Abdin, hence Ashique will not be spared today. All the five accused persons assaulted with their respective weapons to his brother. On hue and cry of complainant and his brother-in-law, various persons working in the field, namely, Zamiul Islam @ Miyan, Salim @ Bhola and others reached there raising alarm. All the accused/appellants escaped towards western field. When the complainant and all other persons came near to his brother, he was found dead. Thereafter the complainant went to the police station to lodge the first information report leaving behind his father and various persons of his village beside the dead body.;