Imtiyaz Murtaza, J. - (1.) -This appeal is directed against the judgment and order dated 18.4.2001, passed by Sessions Judge, Kannauj in S. T. No. 286 of 1999 convicting the appellants under Section 148, I.P.C. and sentenced to imprisonment for 3 years, under Section 302/149, I.P.C. and sentenced to imprisonment for life and under Section 323/149, I.P.C. and sentenced to imprisonment for one year.
(2.) BRIEFLY stated, the prosecution case, as alleged in the first information report lodged by Hasruddin, is that about 20 days prior to the occurrence a marpeet took place between Musheer and Bhura and Isthkhar. A panchayat was held which was attended by his brother Shamsuddin Pehalwan who told Bhura and Isthkhar that they have wrongly beaten Musheer. Bhura and Isthkhar had threatened him. On 9.6.1999 the informant, his brother Shamsuddin, Mainuddin, father Nasiruddin were sitting in their grove outside the village. At about 6.30 p.m. Zarif alias Bhura, Shamshad, Iqbal, Ehtasham, Isthkhar and Aiaz Hussain reached there carrying guns and country-made pistols and started abusing them and told them that they are doing netagiri and they will not left them alive and started abusing. They stopped them and told not to abuse. Thereafter, Zarif and Shamshad fired from country-made pistols which hit Shamsuddin on his chest and leg. Shamsuddin died on the spot. He, his brother Mainuddin, father Nasiruddin were also assaulted by butts of a country-made pistols and they sustained various injuries. On their alarm being raised Sattar Ali and Ishtiyaq Ali and several other persons reached there and witnessed the occurrence and saved them. The accused persons abusing and threatening went towards the village and terror was created in the village. The dead body of Shamsuddin was lying on the spot. He brought his brother Mainuddin and father Nasiruddin to the police station and lodged the report. The report was registered on 9.6.1999 at 8.45 p.m. The distance of the police station from the place of occurrence was 4 km. After registration of the case S.I. Asharam Tripathi commenced investigation. He recorded the statement of Head Moharrir Ashok Kumar, informant Hasruddin, injured Mainuddin and Nasiruddin. The injured were referred to the Hospital for medical examination and he reached at the place of occurrence, village Ahmadpur Rauni. On 10.6.1999, the inquest on the dead body of the deceased was prepared by Bhau Singh on his dictation. Photo lash, challan lash, letter to C.M.O. were prepared by S.I. Bhau Singh which is Exts. Ka-9 to 12. He prepared the site plan, which is Ext. Ka-13. He also collected blood smeared and plain earth and two empty cartridges of 12 bore from the place of occurrence and recovery memo was prepared, which is Exts. Ka-14 and 15 and are in the handwriting of S.I. Bhau Singh. On 15.6.1999, he recorded the statements of Sattar Ali and Ishtiyaq Ali and witnesses of recoveries, namely, Kamruddin, Nurul, Zahid Khan, Kalim Khan and Raja Miya. The investigation was concluded by Nalneet Mishra and he submitted charge-sheet against the accused persons. The post-mortem on the dead body of the deceased Shamsuddin was conducted by Dr. Ram Kumar on 10.6.1999 at 4.20 p.m. and he noted following ante-mortem injuries on the person of the deceased : 1. Fire arm wound of entry 4.5 cm. x 4 cm. x chest cavity deep portion front of chest middle part mid sternum region, heart covering out from the wound, margin lacerated, minuted, ecchymosed. On dissection pericardium, heard, left pleura and lung lacerated. Wadding one ticklee 18 small pellets recovered in the chest cavity and organs. Direction front to back towards left side. 2.Fire arm gutter shaped wound 3 cm. x 0.4 cm. x scalp deep from top right side head 11 cm. above right ear. 3.Multiple abrasions on back both side in the area of 28 cm. x 23 cm. measuring 12 cm. x 0.5 cm. to 3 cm. x 0.2 cm.
(3.) IN the opinion of the doctor cause of death of the deceased was due to shock and haemorrhage as a result of ante-mortem injuries. Dr. Amit Kumar Kanaujia had medically examined Mainuddin on 9.6.1999 at 11 p.m. and noted the following injuries : 1. Lacerated wound 0.5 cm. x 0.5 cm. x superficial to scalp 10 cm. above to upper lobe of left ear present on left parietal region. 2.Lacerated wound 2 cm. x 0.5 cm. x superficial to scalp present on left parietal region 3 cm. forward to injury No. 1. 3.Lacerated wound 2 cm. x 0.2 cm. x superficial to scalp on top of skull. 4.Lacerated wound 3.5 cm. x 0.5 cm. x skin deep present on left side forehead just above to lateral side of left eye. 5.Lacerated wound 2.5 cm. x 0.5 cm. x muscle deep present on left side cheek. 6.Abrasion 3 cm. x 0.5 cm. present on back of neck. 7.Contusion 5 cm. x 0.5 cm. present on post surface of left forearm 3 cm. above to wrist joint. 8.Contusion 4 cm. x 2 cm. present on post surface of right forearm in middle point. ;