R.N.MISRA,J. - (1.) THIS appeal has been preferred by the accused -appellants against the judgment and order dated 18.9.2006 passed by Shri Brijesh Kumar, the then II Addl. Sessions Judge, Kannuaj in Sessions Trial No. 35 of 1998, by which the appel ­lants have been convicted for the offence punishable under section 302 read with section 149 IPC and sentenced to undergo life imprisonment. They have further been convicted under section 307 read with 149 IPC, 452,148 and 147 IPC and sentenced to undergo R.I. for 5 years, 1 year, 6 month and 3 months respectively.
(2.) THE facts giving rise to this case are as under : - The complainant -informant Shamshuddin son of Subedar was the resident of village Kushumkhore, police station Kan ­nuaj, District Farrukhabad (now District Kannuaj). The accused -appellants were also residents of same village. About 7 days back to the incident in question, there was some dispute between children of the par ­ties. The goat of the accused persons was grazing maize crops of deceased Zahirud ­din. When son of Zahiruddin objected it he was caught by Masook. When the deceased came to know he made protest to Masook and told him that it was highly improper on his part that his goat had grazed his maize crop and even then he caught hold of his son. This irked him and some abuses were also exchanged. Due to the said en ­mity on 5.9.1997 at about 3:00 PM the ac ­cused -appellants Rafique alias Rauf, Ishtiyak, Ayub, Pauva alias Pappu, Lateef, Ataulla, Nisar and Ateeque came to the house of the deceased. Latif had country made gun (Addhi), Rauf had gun and oth ­ers have country made pistols in their hands. They entered the house of the de ­ceased where the deceased Zahiruddin, his brother Shamshuddin, his wife Zabira and Shahnaz daughter of Mustaq were present. They made indiscriminate firing with their arms with intent to kill all the family -members of the deceased. The deceased, his wife and Km. Shahnaz sustained fire ­arms injuries. They raised alarms and Shamshuddin, Mustaq, Mazid and others reached there and saw the occurrence. The accused -appellants ran away from there by giving "threats'. The family members brought Zahiruddin to the police station Kotwali Farrukhabad and Shamshuddin lodged the FIR Ext. Ka -1, chik is Ext. Ka -3. The police registered a case on crime No. 397 of 1997 as is evident from the G.D. Ext. Ka -14. The I.O. recorded the statement of the injured Zahiruddin under section 161 Cr.P.C, which is Ext. Ka -9. The injured were sent to the hospital and were exam ­ined. The injury report of Shahnaz is Ext. Ka -2, Zahiruddin Ext. Ka -3 and Zabira Ext. Ka -4. Zahiruddin died on the next day due to injuries in the hospital. The I.O. visited the hospital and prepared inquest memo Ext. Ka -15, Challan Ext. Ka -22, Photo Ext. Ka -21 and the letters Ext. Ka -16 and Ext. Ka -17. The memo of the hospital regarding information of the death of Zahiruddin is Ext. Ka -18. The dead body was sealed, specimen of which is Ext. Ka -20. With the letter Ext. Ka -19, it was sent for autopsy. The post -mortem report is Ext. Ka -5. The I.O. visited the spot and prepared site plan Ext. Ka -6 and recorded the statement of the witnesses and submitted charge -sheet Ext. Ka -12 against the appellants. The appellants were charged for the offence punishable under sections 147, 148, 452, 307, 302 and 506 IPC. They denied the allegations levelled against them and alleged their false implication due to en ­mity.
(3.) IN support of its case, the prose ­cution has examined PW -1 Shamshuddin, PW -2 Smt. Zabira, PW -3 Smt. Shahnaz as witnesses of fact. PW -4 Dr. Irfan Ahmad had examined the injuries of Shahnaz, Za ­hiruddin and Zabir. He has proved the in ­juries report Ext. Ka -2, Ext. Ka -3 and Ext. Ka -4. PW -5 Dr. P.V.S. Chauhan, who had performed the autopsy of the dead body of Zahiruddin, has proved the post -mortem report Ext. Ka -5, PW -6 is Sub -Inspector, V.P. Singh, who had investigated the case and has proved the police papers. PW -7 is Dr. Sateyendra Kumar, who had made X -ray of the injuries of Smt. Zabira and Smt. Shahnaz and has proved X -ray report Ext. Ka -10 and Ext. Ka -11. He has also proved the X -ray plates. PW -8 is Sub -Inspector R.P. Saroj, who had completed the investigation after it was converted under section 302 IPC. He has also proved the charge -sheet Ext. Ka -12. PW -9 is Mohd. Hafiz Khan, who had prepared the chik and made entry in the G.D. regarding registration of the case on the basis of the report Ext. Ka -1.;