- (1.) S. C. Nigam, J. This appeal under Section 374 Cr. P. C. has been filed by the accused against the judgment and order dated 25-9-1995 whereby he was convicted under Sections 302 and 459 of the Penal Code and was sentenced to undergo imprisonment for life and rigorous imprisonment for a period of one year respectively thereunder. Both the sentences were ordered to run concurrently.
(2.) THE facts leading to this appeal are as under : P. W. 1 Sugara, wife of Ikram, and daughter of Smt. Jaitoon, is informant. THE informant is daughter of Nanhey Miyan, who married twice. THE appellant and P. W. 2 Smt. Sabbo were born out of the first wedlock. After death of first wife, Nanhey Miyan married with Smt. Jaitoon who reached Sasural alongwith informant. Smt. Jaitoon gave birth to three sons, namely Shamshad Ali, Irshad Ali and Sajjad Ali. Two daughters, namely Nanhi and Parveen Jahan were also born. THE informant's step-brother Mohammad Shah, the appellant wanted to grab the entire properties of Nanhey Miyan and with this end in view he got prepared a fabricated Will in collusion with Banney, son of Badloo and Shaukin Shah, son of Maqbool Shah. Smt. Jaitoon filed a suit and challenged the Will and got success. THE names of all brothers were mutated in the landed property of Nanhey Miyan. This action of Smt. Jaitoon was not relished by the appellant and he threatened her and his step-brothers also to teach a lesson. THE appellant lived in Rampur. He used to visit his house off-and-on. On 21-1-1989 at about 6. 30 p. m. Smt. Jaitoon was preparing food on a traditional Chulha and her sons and daughters were sitting there and were warming themselves. At about 6. 30 p. m. , the appellant arrived there and locked one room of the house. He thereafter stood up near his step-mother (Smt. Jaitoon) and shot her dead by firing a shot on the left shoulder. He reloaded his pistol, caught hold of his brother Irshad Ali and shot him dead. An alarm was raised by the informant and others, who tried to apprehend Mohammad Shah. He caught hands of his brother Shamshad Ali who bit with his teeth on his forearm. The appellant ran away on a bicycle. The incident was witnessed by Smt. Sugara and others, who were present there. The villagers- Islam Ali, Anwar, Rais and others saw him running away. Smt. Sugara got a report of the incident prepared by P. W. 6 Maqsood Ahmad, affixed her thumb- impression and sent her report to the Police station through P. W. 5 Islam Ali and on the basis of written report, H. M. Bansidhar Sharma registered a case at crime No. 17 on the same night at 10. 30 p. m. An entry regarding registration of the case was made in the G. D. at serial No. 35.
(3.) AFTER registration of the case at Police station, P. W. 10 C. P. Singh Tewar took up investigation. He reached the place of occurrence and saw the dead-bodies of Smt. Jaitoon and Irshad on the spot. On account of darkness in the night, he prepared inquest reports of both the deceased (Smt. Jaitoon and Irshad) in the morning on 22-1-1989. He interrogated Km. Sugara, Km. Sabbo, Shamshad, Nanhi and Parveen Jahan on the same day and recorded their statements. He further interrogated Sajjad Ali, Rais, Anwar and Maqsood Ahmad. AFTER inspection of scene of incident, he collected blood stained earth and plain earth in two containers and prepared Fard and sample of seal. A site-plan was also prepared. On 22-1-1989 itself, the then S. O. C. L. Sharma took up the investigation and after perusing the case diary, inquest reports, etc. , searched the accused who could not be arrested. On 23-1-1989 he received post- mortem reports. On 22-2-1989 blood stained earth, clothes, etc. , were sent to Agra for examination through constable Mahendra Singh. P. W. 4 Riyasat Ali produced an earthen lamp to the I. O. who prepared a Fard. AFTER completing investigation, the I. O. submitted charge-sheet against the appellant. After committal of the case, learned Sessions Judge framed charges under Sections 302 and 459 of the Penal Code on 6-2-1991. Accused pleaded not guilty and claimed to be tried.;