- (1.) S. K. Verma, J. Appellants Mumtaz, Mohd. Amin, Mohd. Sharif and Babu were convicted in Sessions Trial No. 117 of 1976 by learned Sessions Judge Fatehpur vide order dated 31st October, 1979 and Mumtaz under Section 302, IPC and the rest of the three appellants under Section 302/34, IPC were sentenced to life imprisonment. It is against this conviction that the present appeal has been filed.
(2.) APPELLANTS Mohd. Amin, Mohd. Sharif and Babu are residents of village Mohammadpur Kalan, appellant Mumtaz is married in village Mohammadpur Kalan, appellant Mohd. Amin and Mohd. Sharif are brothers, all of them belong to the same party. According to the prosecution deceased Khalil Uddin and his brother Jaleel Uddin PW 2 and Razak PW 1, Peer Mohammad PW 5, Shiekh Jalal PW 3 and Hakeem Uddin and others used to keep their Khalihan in Pajawa Oarhwa which is a about 1 1/2 fur longs South of village Mohammadpur Kalan. The incident occurred on the midnight 31-3-1974/1-4- 1974 in the Khalihan. The deceased and the witnesses were sleeping in their Khalihan shown in the site plan prepared by the I. O. The prosecution version is that because of enmity any and party bandi appellant Mumtaz armed with a Gandasa and the other three appellants came to the cot of Khalil Uddin, while the other three appellants were holding the victim, Mumtaz gave a Gandasa blow on the neck of the victim, who died on the spot. It is alleged that he shrieked and on hear ing that sound all the witnesses namely Razak PW 1, Jalil Uddin PW 2, Sheikh Jalal PW 3 and Peer Mohd. PW 5 and others rushed to the place of occurrence flashing their torches. It was also a moonlight night. They challenged the culprits and chased them. However, the culprits threatened them and ran away. The First Information Report of the incident was lodged at Police Station Thariaon at 8. 50 a. m. on 14-4-1974 at a distance of 5 miles. The investigation ensued and Panchayatnama of the dead body was prepared, post-mortem was conducted which indicated one incised wound 5" x 1/2" bone deep below the right angle of mandible, extending medically below the midle of chin and laterally below the right Car. Edges clean cut, transversely placed, spindle shaped on the right side of neck. Underlying organs, muscles, intervening tissues, never major blood vessels, trachin and 5th cervical vertabree were cut The thyroid cartilege was found l"xl/8" cut with cavity deep under Injury No. 1. The Investigating Officer after preparing site plan recording the statements of the witnesses of the locality submitted charge-sheet against the appellants. The appellants pleaded not guilty and claimed to be tried, some of the appellants admit ted long standing enmity between the two groups but denied their partici pation in this crime. The prosecution examined aforesaid eye-witnesses Razak, Jalil Uddin, Sheikh Jalal and Peer Mohammad alongwith the Investigating Officer and the Doctor who had conducted post-mortem examination. The learned trial Judge after considering the evidence on record convicted and sentenced the appellants as aforesaid. Hence this appeal. We have heard learned learned counsel for the appellants as well as the learned AGA and have been taken through the evidence of all the witnesses in great detail. There can be no doubt that Khalil Uddin the victim was murdered in the Khalihan of Pajawa Garhwa where his deadbody was found lying on the cot. There cannot also be any dispute that the incident occurred in midnight on 31-3-1974/1-4-1974. The only question to be considered in this appeal is as to whether the aforesaid eye-witnesses were present near the deceased at the time of occurrence and whether there was sufficient light at that time and also whether these witnesses had sufficient occasion and opportunity to see the culprits.
(3.) SO far as the presence of PW 1 Razafc, PW 2 Jalil Uddin, PW 3 Sheikh Jalal and PW 5 Sheikh Mohammad is concerned all of them consistently deposed before the trial Court they were present in their Khalihan near the place of occurrence. The Investigating Officer who visited the spot found that 'the deadbody of the victim was lying near a Mahua tree at place marked by asterisk in the site plan and that towards east of the same there was paira of wheat crop which was being crushed and towards East of the same, stocks of wheat crop were collected, at place 'a', PW 2 Jalil Uddin was lying on a cot at place 'c' towards North of place 'a', PW 5 Peer Mohammad was present at place 'd' towards North of place 'c' which is about 28 paces from the place of occurrence. Sheikh Jalal PW 3 was sleeping at place CE' towards North of place 'd' which is about 22 paces from the place of incident. PW 1 Razak was at place 'f' which is towards West at a distance of about 110 paces from the cot of the deceased. There is not much controversy so far as the presence of these witnesses is concerned because it is natural for villagers to protest their Khalihan during harvesting sessions when harvesting operations are continuing, there fore we are inclined to believe that these witnesses were present in the Khalihan when the occurrence took place. The next question is whether there was sufficient light at the time of occurrence in the shape of moon light as well as torch light. Almana of the month of Chaitra (March, April 1974) indicates that the night was of Shukla Paksha and it was Ashtami or eight day of the forth night, there is therefore, same probability of moon light being present at the relevant time. The eye-witnesses referred above have also spoken about presence of moon light, although some of them have become hostile and denied the presence of moon light later on. However the position of the moon most probably would be such that it must be setting towards West at that time and the shadow of Mahua tree near the cot of the victim must be falling towards West over the cot of the victim. There is also evidence of presence of torch light which the eye-witnesses are said to have flashed during the occurrence. It can safely he presumed that villagers keep torches when they sleep outside their houses when they sleep in the open to watch their Khalihans. Hence it is not difficult to assume that some of the witnesses must have torches during time of occurrence.;