A.P.SAHI, J. - (1.) THIS appeal has been filed against the judgement and order 1.9.1999 passed by 1st Additional Sessions Judge Moradabad in S.T. No. 671 of 1997 whereby the appellant Khalil has been convicted under section 302 I.P.C. and sentenced to imprisonment for life and fine of Rs. 1000 and in default of payment of fine further imprisonment for six months. The appellants Naushad and Naseem have been convicted under sections 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 1000 each and in default of payment of fine further impris ­onment for six months.
(2.) THE incident, as reported in the F.I.R., discloses the occurrence at about 11.00 A.M. on 28.4.1995. PW 1 - Shahid, who is the son of the deceased, is stated to have lodged the F.I.R. which was tran ­scribed by one Mahboob Ali on his dicta ­tion and on which, according to PW -1, he had placed his thumb impression. It was alleged therein that while PW -1 was com ­ing out from his house after stacking some hay, he saw the accused Khalil Khan, Naushad, Nasir and Naseem, who are resi ­dents of the same village at the scene of occurrence where Khalil Khan armed with a gun and the other accused armed with country -made pistol executed the crime. The role assigned to Naushad and Nasir was that they had caught hold the hands of the deceased and Naseem had been bran ­dishing his country -made pistol to allay the passers -by and villagers with threats while Khalil fired the fatal shot resulting in the death of Shaukat. It is also stated therein that at the time of occurrence, Abrar was running the flour mill (Chakki) and Bakhtawar who was present also saw the commission of the offence. However, due to the terror created by the assailants most of the villagers fled away. The place of oc ­currence described in the F.I.R. is right in front of the door of the flour -mill of the deceased Shaukat where he was stated to have been sitting on his cot when the crime was committed. The First Information Report was promptly lodged on the same day at about 12.05 P.M. and all the 4 accused were named in the First Information Report. The concerned police officer namely R.P. Sharma, S.I., Reporting Police Outpost Narauli, is stated to have reached the spot and recovered the remains of the alleged cartridge which was used for the commis ­sion of the offence. He has further deposed as PW6 and has stated to have carried out the necessary entries and recording of statement of Shahid as well as preparation of the site plan and complete inquest re ­port. The inquest report was prepared at 13.30 P.M. The dead body was dispatched for post -mortem and the post -mortem was conducted by Dr. Om Mehrotra on 29.4.1995 at about 11.00 A.M. The post ­mortem report discloses the age of the de ­ceased about 70 years and an average built person. The cause of death according to the Doctor was shock and hemorrhage due to an ante -mortem injury. The said report has been prepared by the concerned Medical Officer Dr. Om Mehrotra senior Radiologist of District Hospital, Moradabad, who has deposed during the trial as PW -7. The ante -mortem injury is stated to be one gunshot wound of entry 3 cm x 3 cm of theoretic cavity deep on the left side upper part on the front side of the Chest and approxi ­mately 9 cms above the left nipple. The wound was coupled with blackening, Charring and tatooing present in an area of 4 cm x 4 cm around the wound. The inves ­tigation proceeded and is further also stated to have been conducted by the C.B., C.I.D. where after the charge -sheet was submitted and case was committed to the Court of Sessions. The accused Nasir, Naushad and Naseem were charged under sections 302 read with 34 IPC whereas the accused Khalil was charged under section' 302 IPC. During the pendency of the trial it appears, that before recording of the state ­ment of the witnesses, one of the accused Nasir died and, case against him abated vide order of the Trial Court dated 17.8.1998. Thereafter, the prosecution led its evidence by producing as many as 8 witnesses namely Shahid - PW1 (son of the deceased), Bakhtawar - PW2 (brother -in -law of the deceased), Abrar - PW3 (the per ­son who was running the flour -mill on rent from the deceased Shaukat), Rajiv Yadav PW4 (the Investigation Officer), Sri Pal Singh - PW5 (Head constable), R.P. Sharma - PW6 (Sub -Inspector), Dr. Om Mehrotra -PW 7 and Balbir Singh Yadav, retired In ­spector, C.B.,C.I.D. as PW8. All the accused pleaded not guilty and took up a defence that they have been falsely implicated due to enmity. They did not examine any witness in their defence.
(3.) COMING to the prosecution wit ­nesses, the first to be examined was Shahid, the son of the deceased Shaukat. He, in his statement, has described the incident and also stated that he was contesting a litiga ­tion against the appellant Naushad. It is stated by him that the incident occurred at 11.00 A.M. on 28.4.1995 right in front of the door of the flour -mill of the deceased Shaukat where the deceased Shaukat was sitting on his cot when the assailant ar ­rived. He has clearly stated that Khalil was carrying a gun in his hand whereas the other accused were armed with country -made pistols. He has further stated that the accused Nasir (since deceased) caught hold of one of the hands of the deceased and the other hand was caught by Naushad whereas the accused Naseem was bran ­dishing has country -made pistol to put at bay the passers by and the villagers, by threatening them to go away from the scene, or else he would kill them. It has been further stated by Shahid that accused Khalil fired the fatal shot with his gun aimed at Shaukat, who immediately died as a result of the gunshot injury. He has further stated that immediately after the commission of the crime, the assailants fled away from the scene. One of the witnesses Abrar was operating the flour -mill. The shot was fired from a distance of 1 -1 -1/2 feet away by Khalil Khan. On his cross ex ­amination, Shahid deposed that he had no dispute over and passage with the accused and rather the dispute was between Naushad and Islam Khan. Islam Khan is the real brother of Bakhtawar, one of the other prosecution witnesses and the brother -in -law of the deceased. He has re ­peated that he had no dispute with Khalil over some passage nor there was any such dispute between Islam and Khalil. The deposition further discloses that there was no litigation between the accused Khalil and the witnesses either of any civil or criminal nature. He has, however, admitted that his father, the deceased Shaukat, was invoiced in a criminal case relating to the murder of some third persons in which the main assailant herein Khalil was a named witness for the complainant in that case, even though he had not entered the witness box. He has further admitted that he was also an accused in the said case which is still pending. He has further stated that the accused Nasir (since deceased) had been murdered in which an F.I.R. was lodged against some other persons whose names are indicated in the statement. In the said case of murder of accused Nasir, Bakhta -war - PW2 herein is one of the accused. The cross examination of PW1 further discloses that he had clearly denied the theory of alibi set up by the accused, that on the fatal day, they had gone to attend a function in village Basauli about 24 miles away at the residence of one Rais. At the time of the incident, PW -1 has stated that he was standing 2 -3 steps away from the cot of his father on the western side. He Jias further deposed that at the time of incident Abrar, Bakhtawar and the deceased were present at the place of occurrence namely the flour -mill. He has further described Abrar to be operating the flour -mill and the other wit ­ness Bakhtawar to be standing besides him. He further states that there was no crowd assembled and that the assailants had ar ­rived from the Western side of the scene of occurrence. After the shot was fired by Khalil in the manner described herein above, the deceased fell from his cot on the ground and that he did not make any at ­tempt to save his father due to the immi ­nent threat of the assailants. He has further stated that Bakhtawar -PW2 also did not make any attempt to save his brother -in -law, the deceased. He has further denied the recital contained in the F.I.R. that he saw the incident when he was returning back from his house after stacking hay. He his further denied the fact that Bakhtawar was simply passing by when the incident took place and has clearly stated that he was present on the scene of occurrence and that Bakhtawar was also present on the scene from before the incident took place. The statement further indicates that he does not know as to why a different ver ­sion appeared in the First Information Re ­port. After the deceased fell dead, he was again placed on the cot. The witness has dearly admitted the firing of just one shot. PW -1 has also retracted from the discrep ­ancies that were suggested to him in his alleged statement of 161 Cr.P.C The deposition further indicates that Naushad and the other accused Nasir had caught hold the deceased who was shot at before he could make an attempt to release him ­self from their clutches.;