M. Chaudhary, J. - (1.) -Since all the three appeals have arisen out of one and the same judgment dated 29th of January, 2002, passed by Sri A. K. Tripathi, Additional Sessions Judge Court No. 6, Bareilly, in Sessions Trial No. 1502 of 1999, State v. Sohrab and others, all the three appeals have been taken up and heard together and are being disposed of by this common judgment.
(2.) TWO criminal appeals have been filed on behalf of accused-appellants from judgment and order dated 29th of January, 2002 passed by Additional Sessions Judge Court No. 6, Bareilly in Sessions Trial No. 1502 of 1999, State v. Sohrab and others, convicting accused Sohrab, Nanhey son of Mehtab, Gantha, Maqsood alias Taini, Bhola, Salim and Akbar under Section 148, I.P.C. and Section 302 read with Section 149, I.P.C. and sentencing each of them to two years' rigorous imprisonment and imprisonment for life respectively thereunder. Accused Akbar, Salim, Sohrab, Maqsood alias Taini and Gantha were also convicted under Section 25 of the Arms Act and each of them sentenced to two years' rigorous imprisonment thereunder and accused Irshad under Section 4/25 of the Arms Act and sentenced to one year's rigorous imprisonment thereunder. Accused Nanhey Sheikh alias Ishaq, Sahulat and Irshad were acquitted of the charge levelled against them under Sections 147, 148 and 120B, I.P.C. and Section 302 read with Section 149 I.P.C. Brief facts giving rise to these appeals are that Nisar Khan, Ali Bahadur, Bhurey Khan and Kallu Khan were real brothers being sons of Surram Khan. Altaf Ali and Ahmad Shafi Khan are sons of Bhurey Khan. Navi Ahmad, Iqbal Khan, Rahmat Ali and Anwar Ali were real brothers being sons of Ahmad Shafi Khan. Accused Sohrab and Nanhey are real brothers being sons of Mehtab Khan. In the evening of 30th of May, 1999 there was a feast to celebrate madha ceremony of the marriage of Gauhar Ali son of Muqaddar Ali. At about 7.00 p.m. that evening Nisar Khan and his brothers Ali Bahadur, Bhurey and Kallu alongwith Anwar Ali, Navi Ahmad, Rahmat Ali and Iqbal Khan sons of Ahmad Shafi had also gone to attend the feast that all of a sudden Sohrab, Nanhey, Maqsood alias Taini, Akbar, Salim, Gantha and Bhola alongwith 2-3 unknown persons armed with rifle, guns and countrymade pistols reached there shouting that they had damaged them a lot and would be shot down now and immediately they started firing at Anwar Ali with their respective weapons. Immediately all the persons including persons who were taking food throwing their plates ran for their lives. Sustaining fatal injuries Anwar Ali fell down. Nisar Khan, Iqbal Khan and their family members ran towards their respective houses. Sahulat Hussain, Nanhey Sheikh and Irshad armed with countrymade pistols standing at the kharanja encircled Ali Bahadur, and in the meanwhile after assaulting Anwar Ali all the seven assailants abovenamed alongwith 2-3 others also reached there and all of them started firing at Ali Bahadur. All the persons who were running towards their houses got frightened and closed the doors of their respective houses, and the assailants firing shots fled away towards east. Then Nisar Khan and his family members went to injured Ali Bahadur and Anwar Ali. By that time both of them succumbed to the fatal injuries sustained by them. Immediately Nisar Khan got report of the occurrence scribed by one Mohammad Anis and went to police station Bithri Chainpur situate at a distance of three kms. from the village and handed over written report of the occurrence to the police there at 9.15 p.m. the same night. The police registered a crime against the accused and made entry regarding registration of the crime in the G.D. Station Officer K. P. Singh took up investigation of the crime in his hands and went to the scene of occurrence. As the Investigating Officer was inspecting the place of occurrence generator operating at the scene of function went out of order. Then after arrangement of proper light the Investigating Officer recorded statements of the witnesses and inspected the scene of occurrence. He collected blood stained and simple earth from both the places where dead bodies of Anwar Ali and Ali Bahadur were lying at a distance of some 70-75 paces from each other and prepared their recovery memos and sealed the same in separate packets. He also picked up empty cartridges, pieces of butt lying at the scene of occurrence, sealed them in separate packets and prepared their memos. After inspecting the site he also prepared site plan map of the place of occurrence. On the directions of station officer K. P. Singh S.I. Fauji Singh drew inquest proceedings on the dead bodies of Anwar Ali and Ali Bahadur after sunrise and handed over both the dead bodies in separate sealed covers alongwith necessary papers to constables Mohan Singh and Sri Pal for being taken for their postmortem report. Autopsy on the dead body of Anwar Ali and Ali Bahadur was conducted by Dr. Devendra Kumar Bajpayee, Medical Officer District Hospital, Bareilly at 2.00 p.m. and 2.35 p.m. respectively.
(3.) AUTOPSY on the dead body of Anwar Ali revealed belownoted ante mortem injuries : 1. A firearm wound of entry 1.5 cm. 1.5 cm. bone deep on left side temporal region of skull 1.5 cm above and anterior to left ear with margins inverted and lacerated temporal bone underneath fractured. Blackening and tattooing was found present around the wound in 4 cm area. On dissection frontal bone, anterior cranial fossa around the left side maxillary and sphenoidal bones fractured. Mandible also fractured. 2.A firearm wound of exit 4 cm. 2.5 cm. brain cavity deep through and through corresponding to injury No. 1 on right side forehead just above right eyebrow with margins everted and lacerated. 3.A firearm wound of entry 2 cm. 2 cm. chest cavity deep on lateral aspect of left side chest six cms below post axillary fold with margins inverted and lacerated, blackening and tattooing present. 4.A firearm wound of exist 4.5 cm. 4 cm. chest cavity deep through and through on front of left side chest 6 cm. medially to left nipple at 8 O'clock position with margins lacerated and everted, 3rd and 4th ribs underneath fractured. 5.Abraded contusion 2 cm. 2 cm. over right side nostril and nose. 6.Abraded contusion 3 cm. 3 cm. over left cheek. 7.A firearm wound of entry 2 cm. 2 cm. muscle deep through and through on back of left upper arm 6 cm. below axilla with margins lacerated and inverted. Blackening and tattooing present. 8.A firearm wound of exit 4 cm. 3.5 cm. corresponding with injury No. 7 five cm. below axillary fold with margins everted and lacerated. 9.A firearm wound of entry 4.5 cm. 3.5 cm. muscle deep over left side chest 3 cms. above left nipple in anterior axillary line. On internal examination brain and its membranes were found lacerated and hematoma present at the base of skull. Left lung, pleura, pericardium and heart were lacerated. Stomach and peritoneum were also found lacerated. The doctor removed 75 small pellets, one wadding piece and two plastic pieces from left side chest and left arm. The doctor opined that death was caused due to shock and hemorrhage as a result of ante mortem injuries about one day ago. Autopsy conducted on the dead body of Ali Bahadur revealed below noted ante mortem injuries : 1. A lacerated wound 2 cm. 1.5 cm. on right side forehead 4 cm. above and lateral to eyebrow. Underneath frontal bone depressed and fractured. 2.Lacerated wound 1.5 cm. 1 cm. muscle deep over left cheek bone. 3.Lacerated wound 3 cm. 0.5 cm. muscle deep over left nostril and face. 4.Lacerated wound 1 cm. 0.5 cm. bone deep over left lower jaw bone fractured underneath. 5.A firearm wound of entry 3 cm. 2.5 cm. over left side chest 6 cm above left nipple at 11 O'clock position with margins inverted and lacerated, blackening and tattooing present. 6.Lacerated wound 11/2 cm. 1 cm. muscle deep just above right nipple. 7.A firearm wound of entry 4 cm. 3 cm. cavity deep over left side abdomen upper part 14 cm. below left nipple with multiple small wounds of entry present around the wound each measuring 0.6 cm. 0.6 cm. Margins of the main wound inverted and lacerated. Blackening and tattooing present around the central wound. 8.A firearm wound of exit 3 cm. 21/2 cm. over right hypochondrium 15 cm below right nipple corresponding with wound No. 7. 9.Multiple firearm wounds of entry in an area of 24 cm. 14 cm. with a central hole 3 cm. 2 cm. cavity deep, small wounds each measuring 0.6 cm. 0.6 cm. Margins of wound lacerated and inverted. 10.A firearm lacerated wound 7 cm. 3 cm. (grazing) muscle deep over post medial aspect of right forearm in the middle. Blackening and tattooing present. 11.A firearm wound of entry 1 cm. 1 cm. muscle deep on right side back in middle near midline, gun powder marks present around in an area of 8 cm. 6 cm. 12.Abrasion 1 cm. 1 cm. over the iliac spine on right side. On internal examination frontal bone on right side was found fractured and hematoma present thereunder. Left lung and pleura, heart, pertoneum and pericardium were found lacerated. 6th rib on right side and 3rd and 4th on left side were found fractured. Small and large intestines were lacerated at places. Stomach contained 200 ml semi-digested food material. The doctor opined that death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.;