Ravindra Nath Kakkar, J. - (1.) This criminal appeal has been filed challenging the judgment and order dated 11.10.1983 passed by III Additional Sessions Judge, Muzaffarnagar in S.T. No.351 of 1981, convicting and sentencing the appellants under Section 302 IPC read with Sections 149 IPC to life imprisonment and under Section 452 IPC to two years imprisonment. Appellants Suleman and Faiz Mohammad were also convicted under Section 148 IPC to 1 and 1/2 years R.I. and Sher Mohammad and Islam were convicted under Sections 147 IPC to one year R.I.
(2.) To appreciate the contentions raised by the learned counsel for the parties, it would be expedient to go through the facts of this case.
(3.) Briefly stated, the prosecution case is that in the intervening night of 17/18.6.1981 at about 2 O' clock while informant Murtaza and his sister Mustufai were sleeping in the house and other family members were sleeping in Sehan of the house, appellants Faiz Mohammad, Sher Mohammad sons of Ahsan Ali, Suleman and Islam sons of Mushtaq and one unknown person entered the house. Appellant Suleman was armed with a gun whereas Faiz Mohammad with a country made pistol and other appellants with lathis. Informant and his sister Mustufai were sleeping at that time. Mustafai's cot was beside the cot of his brother Murtaza. Hearing footsteps of the appellants, Murtaza awoke and seeing this the appellants started firing upon them. The fire hit his sister Mustafai and she died instantaneously. Hearing the noise of firearms informant's brother Ziaul Hasan and his wife Rabia who were sleeping outside the house awoke and they tried to intercept, the appellants assaulted Ziaul Hasan and his wife Rabia with lathis and ran away towards the west of the house. The informant raised alarm upon which his family members and other village people came there and saw the accused appellants running outside the house. While doing so, they left a lathi and some live cartridges in the house. The incident was witnessed by the informant, his family members as well as other persons of the village. The report of incident was promptly lodged at police station Kotwali, Muzaffarnagar immediately the same day at 4.15 in early morning and was registered as Case Crime No.644 of 1981 under Sections 147, 148, 149, 452 and 302 IPC at Police station Kotwali, Muzaffarnagar. The investigating officer reached the spot with police personnel and made thorough inspection of the entire place of occurrence and prepared the site plan. Panchanama of the dead body was carried out and fard recovery of live cartridges, lathis and blood-stained 'khesh' (Dulai) etc. was made in presence of the witnesses. Injured Ziaul Hasan and Rabia were sent to medical examination. After completing the investigation, charge sheet was submitted against accused appellants before the court of Chief Judicial Magistrate who took cognizance on the charge sheet and committed the case to sessions court for trial of accused appellants. Charges were framed by the trial court against the accused appellants under Sections 147, 148, 149, 452 and 302 IPC to which they pleaded not guilty and claimed to be tried.;