- (1.) M. C. Jain, J This appeal from jail has been filed by the sole accused appellant Gaffar against judgment dated 30-4- 2002 passed by Vth Additional Sessions Judge, Bijnor in Sessions Trial Nos. 326 of 1999, 327 of 1999 and 328 of 1999 (tried together) whereby he has been convicted under Section 302 I. P. C. with sentence of life imprisonment; under Section 25 of Indian Arms Act with the sentence of two years' rigorous imprisonment and payment of fine of Rs. 1,000/ -. In default of payment of fine, he has been sentenced to undergo further rigorous imprisonment for three months. He has also been convicted under Section 4/25 of Indian Arms Act with sentence of one year's rigorous imprisonment and fine of Rs. 500/ -. In default of payment of fine, one month's further rigorous imprisonment has been awarded. All the sentences have been ordered to run concurrently.
(2.) SINCE the accused appellant had no pairokar or the Counsel, this Court appointed Sri D. R. Chaudhary as amicus curiae to argue out the appeal on his behalf. We have heard him as also Miss Usha Kiran, learned A. G. A. for the State. Thumbnail sketch of the case should first be taken note of. The incident occurred on 19-4-1999 at about 12. 30 p. m. in Mohalla Khatriyan, P. S. Kotwali, District Bijnor and the F. I. R. was lodged the same day at 2. 45 p. m. by Smt. Rafika PW 1 eye-witness (wife of the deceased Abdul Salam ). Abdul Salam used to earn his livelihood by pulling a rickshaw. The accused appellant is the son of Abdul Sattar younger brother of Abdul Salam. As Abdul Sattar had died, the accused appellant Gaffar was brought up by the deceased Abdul Salam. Gaffar developed some ailment in one of his eyes. Abdul Salam got him treated to the best on his discretion, but in vain. Gaffar used to accuse the deceased that he was responsible for spoiling his eye by getting him treated by trouts. He also used to accuse that he had got his father Abdul Sattar murdered. On the eventful day and time, the deceased was taking tea at the shop of Shamim Halwai in Mohalla Khatriyan. His sons Islamuddin and Nizamuddin were also standing nearby. Gaffar accused appellant appeared there and opened a shot in his back by countrymade pistol. Abdul Salam fell down and then the accused assaulted him with chapar (sharp cutting weapon) on left side of his face. He was apprehended at the spot by Yusuf PW 2, Islamuddin and Nizamuddin with countrymade pistol and chapar. Abdul Salam died at the spot instantaneously. His wife Rafika PW 1 had reached the spot hearing the noise emanating from the spot, her house being only at a distance of 100 yards.
(3.) ON the lodging of the F. I. R. , a chik was prepared by Sukhbir Singh PW 4. The accused alongwith pistol and chapar had also been taken to the police station and deposited there. The weapons of offence (countrymade pistol and chapar) were sealed at the police station and then kept in Malkhana. The investigation of the case was taken up by S. O. A. K. Gautam PW 7 who was present when the F. I. R. was lodged and the accused taken there alongwith the weapons of offence. The statement of the informant was recorded at the police station itself. Then he reached the spot alongwith other police personnel. There, the inquest report of the dead-body was got prepared by him by S. I. N. K. Pundir PW 5 who had accompanied him. Other necessary papers were also prepared. The dead-body after being sealed was sent for post-mortem through Constable Shokinpal Singh PW 6 and Constable Dharamveer. The post-mortem over the dead-body of the deceased Abdul Salam was conducted on 19-4-1999 at 8. 30 p. m. by Dr. A. S. Rathore PW 3. The deceased was aged about 55 years. The following ante-mortem injuries were found on his person: (1) Incised wound 8 cm x 1 cm x bone deep on left side ear and adjoining face. (2) Lacerated wound 2 cm x 1 cm x skin deep over right side face just below the right eye. (3) Fire-arm wound of entry 4 cm x 3 cm x chest cavity deep on right side back of chest medial and inferior angle of scapula and 3 cm from mid-line in mid thorasic region. Margins inverted, scorched and area blackish and tattooed, bleeding, broken ribs. (4) Contusion reddish with feeling of pellets underneath in area 6 cm x 4 cm on right side front of chest, 2 cm medial and inferior to right nipple at 4 O' clock position.;