M. Chaudhary, J. - (1.) THIS is a criminal appeal filed on behalf of the accused-appellant from judgment and order dated 31st of March, 2001, passed by IVth Additional Sessions Judge, Pilibhit in Sessions Trial No. 179 of 1997, State v. Mohammad Sabir convicting the accused-appellant under Section 302, I.P.C. and sentencing him to imprisonment for life thereunder. Accused Mohammad Sabir was acquitted under Section 25 of the Arms Act by the impugned judgment.
(2.) PROSECUTION case as unfolded during the trial in brief is that Gulam Mohammad alias Chunna alongwith his wife Rani Begum and children used to reside at Mohalla Pakariya within the limits of police station Pilibhit, Kotwali, district Pilibhit. Some fifteen days prior to the murder of Gulam Mohammad alias Chunna, Mohammad Sabir, resident of mohalla Khera went to the house of Gulam Mohammad and asked him to prepare kantta sabbal (tool for burglary) but Gulam Mohammad refused which resulted in an altercation between them and Gulam Mohammad snubbed him and made him go away. At that time Mohammad Sabir threatened Gulam Mohammad to see him. At about 3 a.m. during the night between 21st and 22nd of October, 1996, Mohammad Sabir alongwith Salim entered the house of Gulam Mohammad by scaling the wall and caught hold of Gulam Mohammad who was sleeping in the room and took him in the aangan and Salim asked Sabir that he had insulted him and he should be shot dead. That night Amiruddin, brother-in-law of Gulam Mohammad was sleeping in his house because Gulam Mohammad was not well as he was suffering with colic. In the meanwhile Rani Begum, wife of Gulam Mohammad raised cries and Amiruddin also woke up. At that time an electric bulb was lighted on the wall in between the room and the verandah. As Amiruddin tried to catch hold of the two miscreants Mohammad Sabir fired at Gulam Mohammad with countrymade pistol hitting him at his chest. Immediately Mohammad Sabir picked up black burka of Rani Begum lying there and wrapped the countrymade pistol in the burka and both the miscreants took to their by opening the door of the house. Sustaining the firearm injuries Gulam Mohammad fell down and died on the spot instantaneously. Raising the hue and cry Rani Begum and Amiruddin chased the miscreants. In the meanwhile, Gypsy of police reached there and the police personnel got down and caught hold of Mohammad Sabir and Salim with countrymade pistol, cartridges etc. near Gajala Unani Davakhana. On being enquired they disclosed their names as Mohammad Sabir and Salim and on their personal search one countrymade pistol wrapped in a black burka with an empty cartridge in its barrel was recovered from the possession of Mohammad Sabir and seven live cartridges from that of Salim. Smt. Rani Begum got report of the occurrence scribed by Faiyazuddin Shamshi and went to police station Pilibhit Kotwali situate at a distance of three furlongs from the place of occurrence and handed over written report of the occurrence to the police there at 4.10 a.m. The police registered a crime against the accused under Section 302, I.P.C. Station Officer Jagvir Singh Tomar alongwith the police personnel arrested the two miscreants. The police sealed the arm and ammunition recovered from the miscreants in two separate packets and prepared their recovery memo (Ext. Ka-5). Since both the miscreants apprehended by the police confessed that they committed the murder of Gulam Mohammad the arresting officer got vest and shirt put on by Mohammad Sabir collected as they contained bloodstains, sealed them in a packet and prepared the memo (Ext. Ka-6). Then Station Officer jagvir Singh Tomar taking the two persons arrested went to police station Pilibhit Kotwali and lodged an F.I.R. against both of them under Section 25 of the Arms Act at 5.25 a.m. the same morning. The police registered crimes against both the accused accordingly and made entry regarding registration of the crimes in the G.D. Station Officer Jagvir Singh Tomar who took up investigation of the case in his hands went to the scene of occurrence. On the directions of Station Officer Jagvir Singh Tomar, S.S.I. Ram Shankar Misra drew inquest on the dead body of Gulam Mohammad and handed over the dead body in a sealed cover alongwith necessary papers to constables Abbas Ahmad and Pervez Ahmad for being taken for its post mortem.
(3.) AUTOPSY conducted on the dead body of Gulam Mohammad by Dr. J. N. Misra, physician District Hospital, Pilibhit on 22nd of October, 1996 at 4 p.m., revealed belownoted ante mortem injuries : Firearm wound of entry 3 cm. x 3 cm. on left side of chest 0.5 cm. below inner end of left collar bone. Upper and middle part of left lung badly lacerated. First rib on left side fractured. Left atrium of heart also lacerated. Pericardium and left pleural cavity were full of blood. Blackening and tattooing present around the wound. The doctor recovered two small pellets from inside the wound. Stomach contained 100 gms. of semi digested food. The doctor opined that the death was caused due to haemorrhage and shock as a result of ante mortem injuries about half day ago. The Investigating Officer collected bloodstained earth and simple earth from the place of occurrence, sealed them in separate packets and prepared its memo (Ext. Ka-2). The Investigating Officer also recorded statements of the witnesses and did other necessary things. He also got bloodstained earth, clothes of accused Mohammad Sabir and that of the deceased sent to Forensic Science Laboratory, Agra, for serologist's opinion if the bloodstained items contained human blood and if so classification of blood group. He also sent countrymade pistol and empty cartridge recovered from the possession of Mohammad Sabir to the Forensic Science Laboratory, Agra, for opinion of ballistic expert.;