Mukhtar Ahmad, J. - (1.) The present appeal has been preferred against the judgement and order of conviction and sentence dated 12.7.1984 passed by Sessions Judge, Aligarh in Sessions Trial No. 170 of 1983 (State of U.P. v. Farid and 6 others) under Section 147, 148, 323, 307, 302 I.P.C. However appellant nos. 1, 2, 3, 5 and 7 namely Farid, Aslam Salli, Islam and Abdul Shakoor have expired during the pendency of this appeal hence the appeal in respect of them stands abated. Now this appeal survives on behalf of appellants no.4 and 6 namely Jamil and Munna respectively. Appellant Jamil has been convicted and awarded sentence to undergo life imprisonment for the offence punishable under Section 302 read with Section 149 I.P.C. 3 years rigorous imprisonment for the offence punishable under Section 307 read with Section 149 I.P.C., two years rigorous imprisonment for the offence punishable under Section 452 I.P.C. and one year rigorous imprisonment for the offence punishable under Section 148 I.P.C. Appellant Munna has also been convicted and awarded sentence to under go life imprisonment for the offence punishable under Section 302 read with Section 149 I.P.C., for the offence punishable under Section 307 read with Section 149 I.P.C. is sentenced to undergo rigorous imprisonment for three years. Further convicted for the offence punishable under Section 147 I.P.C. is sentenced to undergo rigorous imprisonment for one year.
(2.) The prosecution case in essence is that informant Shamim d/o Bundu r/o Mohalla Nichan at Atroli was married to Anwar @ Inna r/o Delhi darwaza, Aligarh and she was staying in her parental house. On 14.9.1982 her dewar Aslam s/o Jhallar along with Rais s/o Rashid came to her parental house to bring her with them. On 15.9.1982 first informant, her younger sisters Golo and Hasina, daughter Reshma were present in the house. At about 7 a.m. Aslam s/o Nijam having Bugda, Salli s/o Uddi having knife and lathi, Farid s/o Shakoor and Jamil s/o Hamidulla both having knives entered into the house. All the accused dragged Aslam and took him out of the door in the lane. Accused Salli and Jamil caught hold of the hands of Aslam and accused Aslam s/o Nijam inflicted with Bugda and Farid with knife with a view to kill him. It was also alleged that seeing this Raees came out on the door of the house, then accused Abdul Shakoor, Islam and Munna, who were standing infront of the door having knife and Bugda in their hands, caught hold Rais. Accused Munna gave him a Bugda blow while remaining inflicted knife blows on him with a view to kill him. It was further asserted that Aslam and Raees sustaining serious injuries fell down on the ground. On hue and cry one Naseeran widow of Bashir came there to protect them but Salli assaulted a lathi blow on her causing fracture in her forearm. Thereafter witnesses Fahim Khan s/o Kayyum Khan, Mashkoor s/o Shakoor Mulla, Shabbir s/o Saddik, Babu s/o Abdul Jamil, Munna Mali s/o Lakshman and Ramu and so other persons came on the spot who save them and saw the incident. It was also said that on 14 August too appellant Aslam had stabbed her brother Anwar and a report of this effect was made in the concerning police station and there was old enmity with accused persons. Injured Aslam, Rais and Nasiran were taken to the police station, where First Information Report was lodged on the oral assertion of Smt. Shamim PW.3 and Chik FIR was prepared by Head Constable Badri Prasad Pw.6 and entry in the concerning G.D was also made. Thereafter injured were sent for medical examination to Primary Health Centre, Atrauli through constable Ranvir Singh where Aslam s/o Jhallar was declared as brought dead, thereafter section 302 I.P.C. was added.
(3.) Dr. S.C. Singhal (PW-10), Medical Officer, Primary Health Centre, Atrauli examined the injuries of Rais (PW-1) at 8.47 am on 15.9.1982. He found following injury on his person:- Incised wound 5.5 cm. x 2 cm. x not proved over middle of left side back 7.5 cm. below the lower end of left shoulder blade, clean sharp cutting margins, bleeding present. Advised x-ray of chest According to him the injury was caused by some sharp edged weapon and was grievous in nature and was fresh at the time of examination. He also recorded the dying declaration of injured Rais marked Ex. Ka-27-28 in the presence of the Tehsildar, Atrauli on same day i.e. 15-9-1982 at 8.30 am. Thereafter second dying declaration was recorded at 8.40 am. On the same day Dr. S.C. Singhal also examined the injuries of Nasiran and found following injuries on her person: 1. Lacerated wound 0.4 cm x 0.1 cm over outer aspect of right upper arm 12.5 cm above the right elbow joint, margins irregular, bleeding present. 2. Traumatic swelling in the area of 11 cm x 11 cm over front and outer aspect of right upper arm just above the right elbow joint-advised x-ray. According to him the injuries were caused by some blunt weapon and were fresh and that injury no.1 was simple and injury no.2 was kept under observation and x-ray was advised.;