Parmeshwar Dayal, J. - (1.) THIS appeal arises out of the judgment and order dated 7-2-1978, passed by Sri K. Narayan, Ilnd Additional Sessions Judge, Paizabad, convicting and sentencing the appellants Sayyed Ali, Hayat Mohammad, Mohammad Abrar, Raz Mohammad, Iqbal Ahmad, Hikmat Ali, Abdul Hai, Dost Mohammad, Wahid, Zamal Akhtar, Zain Ullah, Shaukat Ali and Munnar to 2 years rigorous imprisonment under section 147 IPC and the appellants Sirtaj, Mohammad Shahid and Wali Mohammad to 3 years rigorous imprisonment under section 148 IPC and further convicting and sentencing all the appellants under section 302 IPC read with Section 149 IPC to imprisonment for life and to pay a fine of Rs. 200/- each, and directing the sentences to run concurrently.
(2.) THE prosecution case, briefly stated, has been that there have been two parties in village Hanswar, within the circle of P. S. Baskhari, district Faizabad, the deceased Dularey headed one party while the other party consisted of the accused-appellants, THEre has been a long standing litigation and enmity between them. Kalimullah PW 3 lodged FIR followed by a complaint against the appellants Mohammad Shahid, Wali Mohammad and Sirtaj, in the year 1974. This complaint was [ending on 19-6-1975 when Dularey was murdered. THE complaint was subsequently dismissed. Abdul Kuddus PW 4 lodged FIR under Section 326 IPC against the appellants Sirtaj and Abrar and the trial arising out of that FIR was pending when the murder trial of Dularey was proceeding. Proceedings under Section 107 CrPC were also drawn between the parties. THE deceased Dularey was prosecuted for an offence punishable under Section 307 IPC alongwith Mohammad Shafi son of Kalimuddin PW 3, Mohammad Ayub, Shabbir PW 1, Mushir, Tufail and Taskir Ahmad PW 2. Ten persons were prosecuted for an offence punishable under Section 307 IPC for assaulting Tasadduk. It was due to the aforesaid enmity which the appellants entertained against Dularey and his family members that on 19-6-1975 at about 7-30 a. m. when Dularey was coming out of the tea stall of Siyaram in the Bazar of Hanswar, within the circle of P. S. Baskhari, district Faizabad, after taking his morning tea with Shabbir Ahmad PW 1 that they saw the appellants at a distance of 10 or 12 steps towards the north of that shop. The appellant Sirtaj and Mohammad Shahid held country made pistols and Wali Mohammad held a Farsa while the remaining appellants possessed lathis. Sirtaj and Mohammad Shahid exhorted that they should be killed, with the result that all the appellants surrounded the deceased Dularey and assaulted him with lathis. Shabbir Ahmad PW 1 managed to escape and he raised alarm attracting Taskir Ahmad PW 2, Kalimullah PW 3, Abdul Kuddus PW 4, Tassaduk Husain, Abdul Hai, Ali Jan, Abdul Wahid, Izzat, and Kalimullah. The appellants abused and assaulted these witnesses also by means of lathis and Katta. Ram Asrey, Abdul Rashid, Layeeq, Abdul Rauf and several other persons reached there. During the course of assault on the deceased Dularey the appellant Shaukat was saying that he was still alive and then the appellants reassaulted Dularey. Smt. Mehmunnisa and Km. Jhunjhun also reached there and they received fire arm injuries. The deceased Dularey in an injured state alongwith other injured persons was taken to hospital. Ganga Saran Misra, Pradhan of the village Hanswar, scribed the FIR Ex. Ka-1 at the instance of Shabbir Ahmad PW 1 who handed it over in police station Baskhari on 19-6-1975 at 10 a m. at a distance of 5 miles. On its basis, the chik FIR Ex. Ka-53 was prepared and the case was registered at no. 14 of the G. D. vide copy Ex. Ka-54. The Investigating Officer R. S. Rai PW 5 was present in the police station when the case was registered. He in errogated Shabbir Ahmad PW 1 in the police station whereafter he reached Hanswar hospital andJ interrogated Dularey alias Mohd. Ismail, Taskir Ahmad PW 2, Abdul Kuddus PW 4, Kalimullah PW 3 and others. On reaching the place of occurrence, he prepared the site plan Ex. Ka-2. He picked up the blood stained and plain earth which he kept in sealed containers and of which he prepared a memo. He was informed at about 3-30 p. m. that Mohd. Ismal alias Dularey died. He prepared the inquest report and other papers vide Exts. Ka-3 to Ka-6 and handed over the dead body in a sealed cover to constable Chandra Shekhar Bajpai for being taken to mortuary. The accused- appellants were nut traceable and proceedings under sections 82/83 CrPC were drawn against them vide Ex. Ka-7 to Ka-38. The accused appellants -surrendered themselves in Court.
(3.) DR. S. H. A. Rizvi PW 6 prepared the injury reports Exts. Ka-41 to Ka-51 pertaining to Izzat, Abdul Wahid, Kalimullah PW 3, Ali Jan, Km. Jhunjhun, Taskir Ahmad PW 2, Abdul Hai (other than the accused), Smt.Mehmunnisa, Abdul Kuddus PW 4, Tassaduk Husain and of the deceased Ismail alias Dularey on 19-6-1975. DR. V. N. Agarwal PW 7 conducted the post-mortem examination on the dead body of Dularey on 20-6-1975 at about 3-15 p. m. and prepared the [post mortem examination report Ex. Ka-52. On completing the investigation, the Investigating Officer submitted chargesheet Ex. Ka-39.;