- (1.) SUDHIR Agarwal, J. This is an appeal against acquittal of all accused by the Special/additional Sessions Judge, Meerut vide judgment dated 12th of June 1990, in Sessions Trial No. 418 of 1987. Accused were ten in number, namely, Babu, Wasiyat, Chaman, Shahzama, Zafar, Kalwa, Saida alias Sayeed Hasan, Anwar, Mohd. Ilyas and Riyasat who were prosecuted for offences under sections 147, 148, 149 and 302 IPC. Earlier, the accused were fortunate enough since their appeal was dismissed by an Hon'ble Single Judge (it was cognizable at that time by Single Judge) at the threshold vide order dated 10th July, 1992 but the destiny did not allow the matter to rest here and the State preferred Criminal Appeal No. 118 of 1996 before the Apex Court. It was allowed by the judgment dated 29th January, 1996 and setting aside the order of the Hon'ble Single Judge, the Apex Court remitted the matter back with the direction to grant leave, admit appeal, issue notice to the respondents and then decide the matter on its own merits. Accordingly, the Division Bench vide order dated 14. 5. 1996 granted leave to appeal and issued notices to the respondents and Trial Court's record was summoned. After service of notice on the accused respondents, vide order dated 20. 5. 2005, this Court admitted the appeal. That is how this appeal has come up before this Bench for hearing afresh. It is to be noticed at this stage that during pendency of the matter, accused respondent No. 7 Saida alias Sayeed Hasan son of Hamid and accused respondent No. 9 Mohd. Ilyas have died and, therefore, the appeal stood abated against them and presently, it is concerned with only 8 accused respondents, namely, Shahjama, Chaman, Zafar, Kalwa, Anwar, Riyasad, Babu and Wasiyat.
(2.) WE have heard Sri Karunand Ba-jpayee, learned A. G. A. for the State-appellant, Sri P. N. Mishra, Senior Advocate assisted by Sri V. M. Zaidi Advocate for the accused respondents and have perused the material on record. Broad essentials of the prosecution case as surfacing from the First Information Report and evidence may be put forth. As per the First Information Report made on 19. 4. 1983 by informant Jamshed Ali, PW 5 to the S. S. P. Meerut, registered as case crime No. lll-A/83 under section 302 IPC, P. S. Kharkhoda, District Meerut, the incident took place on 18. 4. 1983, in the evening at the residence of accused respondent Sakhawat in village Ajrara, P. S. Kharkhoda of Meerut District. It recites that on 18. 4. 1983 accused Sakhawat, Babu and Wasiyat all residents of village Ajrara went to Radhana-village of the informant and told Shamsher (son of the informant Jam-shed Ali, PW 5) that a Panchayat (compromise meeting) was scheduled to be held in their (accused') village to conciliate the enmity that had cropped in between the accused and the informant side on account of murder of one Phurkan. They said that several other persons and relatives would participate in Panchayat and requested Shamsner to accompany them as a Panch. They also told Shamsher that Intzar, Ishti-yaq, Master Abbas, Munkad, Liyakat Ali and Kalwa all residents of village Radhna were also going to village Ajrara to participate in Panchyat by the tractor of Kalwa alias Habib, PW 3. Shamsher said that the aforesaid persons may go by tractor and he alongwith Zahid would be reaching at the place of compromise meeting by motorcycle. All the abovenamed persons left for village Ajrara (accused's village) at 5. 30 p. m. the same day by the aforementioned conveyance, which had been witnessed by the informant PW 5, Abbas, Abbas's son Nanhe and several others. The next morning (19. 4. 1983), Wasi, Zahid etc. told the complainant that under a planned conspiracy, the accused Sakahawat, Wasiyat, Wasim, Babu etc. had committed murder of Shamsher, Intezar, Ishtiyaq and Ramzani and threatened all other persons present in Panchayat of dire consequences in case they dared to tender evidence against them as a result whereof all of them fled away. The incident was reported by the informant Jamshed Ali, PW 5, to the S. S. P. , Meerut on 19. 4. 1983, who forwarded the same to the concerned police station with the direction to register the case and make investigation. Consequently, FIR (Ex. Ka-2) was lodged at Police Station Kharkhoda, district Meerut and a case was registered on 21. 4. 1983 at 2. 15 P. M. as Crime No. III/a under section 302 IPC. The case was initially registered only against three accused, namely, Sakhawat, Wasiyat and Babu. Investigation was undertaken by Virendra Kumar Yadav, PW 8, who was S. O. , Police Station Kharkhoda, District Meerut at the relevant time and had submitted charge-sheet against Sakhawat, Babu and Wasiyat initially and Shahzama, Chaman, Shaukat, Zafar, Kalwa, Saida @ Sayeed Hasan Anwar, later on. After his transfer, new incumbent, PW 4, S. I. J. C. Sharma concluded the investigation and submitted charge-sheet against Ilyas and Riyasat.
(3.) IT is pertinent to mention here that on 18. 4. 1983 at 8. 15 P. M. , an FIR had already been lodged at the Police Outpost Mundali of Kharkhoda Police Station, District Meerut as case crime No. 38 of 1983, under sections 147/148/149/307 IPC, by Sakhawat (accused of case crime No. lll/a/83, under section 302 IPC, registered on the FIR lodged by Jamshed Ali PW 5), setting forth the story that he was pairo-kar in certain criminal cases from the side of prosecution wherein Intzar, Ishtiyaq, Mahtab, Nawab and others were accused of the murder of one Phurkan. On account of pairvy being done by him, the aforesaid persons bore enmity with the complainant Sakhawat and wanted to kill him. As he did not possess any firearm licence, therefore, for his personal security at night he used to keep with him armed persons of his village holding valid, licence. On 18. 4. 1983 at about 6. 45 P. M. , he was sitting in his Baithak (drawing room), along with Sayeed Hasan and Kalwa, Ikram, Chhotey, Intzar, Irshad and Abid. Sayid Hasan and Kalwa were armed with DBBL guns. All of a sudden Intzar, Ishtiyaq, Nawab, Mahtab, Adil, Shamsher all residents of village Radhna and Ramzani R/o village Saundat alongwith 4-5 other unknown miscreants came there running, hurling abuses and shouting at Sakhavat to come out of his house and they would be putting an end to his pairokari and would send him also to his deceased brother and sister's son. Tney resorted to indiscriminate firing, injuring Ikram and Chhotey who were sitting along with the complainant Sakhawat. Few pellets allegedly dashed with the walls. Hearing the noise of firearm, several persons of the village including Zafar and Anwar reached the spot with their licensed gun. Some other persons were having Balkati and lathis. IT is further stated in the FIR that the persons on the side of Sakhawat, opened fire from their licensed guns in self defence and some persons threw bricks at the miscreants. In the incident Intzar, Ishtiyaq and Shamsher all residents of village Radhna and Ramzani of village Saudat were killed. Certain firearms were said to be found in possession of the deceased. This FIR was registered as case crime No. 38 of 1983 under sections 147/148/149/307 IPC and 39 to 42 of 1983, under section 25 of the Arms Act, Police Outpost Mundali under police station Kharkhoda, district Meerut. It has come in evidence that on receipt of FIR lodged by Sakhawat on 18. 4. 1983 at 8. 15 P. M. , the Investigating Officer visited the spot the same night. The S. S. P. and the Circle Officer had also reached the place of occurrence. Due to paucity of time Panchayatnama (inquest report) could not be prepared on 18. 4. 1983. On 19. 4. 1983 the Investigating Officer again visited the spot, took blood stained and plain earth samples and sealed in separately, prepared inquest report and sealed four dead bodies in presence of witnesses to be sent for post-mortem. He prepared Phards/memos (Ex. Ka 13 to Ka-16) of all the articles found at the spot and taken into possession, including tractor, motorcycle etc. and completed all the requisite formalities. The Panchnamas (inquest reports) show that bodies of the all deceased were found at Chabutara which was in front of Baithak of the accused Sakhawat and all had died of gunshot and other wounds. However, pursuant to subsequent FIR registered as case crime No. Ill/a, on the direction of the SSP, Meerut, investigation proceeded and charge-sheets were submitted against the accused respondents.;