- (1.) S. K. Jain, J. This criminal appeal has been filed by the two appellants, namely, Anwar and Ikbal against the judgment and order dated 3. 9. 1982 passed by learned Ilnd Additional District Sessions Judge, Saharanpur in Sessions Trial No. 211 of 1980, State v. Anwar and another under section 302 read with section 34 of Indian Penal Code, P. S. Rampur District Saharanpur whereby learned Sessions Judge convicted two appellants for offences under section 302 read with section 34 of Indian Penal Code and sentenced each of them to imprisonment for life.
(2.) DURING the pendency of appeal, appellant Ikbal died and his appeal stood abated vide order dated 10. 8. 2007. The facts which are essential for the purpose of this appeal are as follows: That there was criminal litigation between the deceased party and party of the appellants. Both parties are resident of the same village. The party of the deceased was acquitted by the Sessions Court, Saha-ranpur against which Ikbal and others had filed appeal before High Court. The groves of the complainant side and appellants side are near to each other. About three days before the present occurrence, there was hot exchange of words between the deceased Dilshad and appellant Ikbal. Ikbal said to Dilshad that he had been acquitted from the Court but he would not be spared by them. They would soon make some arrangement to eliminate him.
(3.) THIS occurrence took place on 25. 11. 1979 at about 8. 30 p. m. in the grove of Ashraf Ali Khan in the village Harpali within the circle of P. S. Rampur, District Saharanpur. On the date of occurrence i. e. 25. 11. 1979, the deceased Dilshad, his father first informant Ashraf Ali Khan, his brother Shamshad and their servant Quasim were irrigating their grove from tube well with the help of tractor. At about 8. 30 p. m. the appellant, Anwar armed with gun and his real brother appellant Ikbal armed with country made pistol with two other unknown persons who were armed with guns, came in their grove. Appellant Anwar pointing out towards deceased Dilshad told his brother Ikkbal and their two unknown companions that Dilshad has made their life hell, today he should be taught a lesson for litigation and for being aggressive. On this, all the four accused opened fire at Dilshad from their weapons. Dilshad received five firearm injuries, fell down on the ground. On an alarm being raised by the first informant Ashraf Ali Khan, Ali Ullah Khan and Nazeer Hasan came who witnessed the occurrence in the light of tractor and also recognised the two appellants, Anwar and Ikbal. The two unknown persons accompanying the appellants could not be identified. The four assailants succeeded in running away. Dil- shad was taken on cot to his village to give him medical aid, but he succumbed to his injuries in the way. His father, first informant, Ashraf Ali Khan left his dead body in the Baithak and got report of the occurrence scribed by Shamshad Ali Khan and went to the police station along with Raghubfr Pradhan, Shiam Singh Saini, Re-htu Lal Saini, Telu Gujjar and Rudra Datt Sharma. THIS report was lodged at P. S. Rampur on 26. 11. 1979 at about 00. 30 hrs. The distance between police station and place of occurrence was seven miles. On the basis of this written report Ex K-l, head Moharrir Ishlam Mohd. wrote chick F. I. R. Ex. Ka-2 and registered the case in G. D. No. 3 at 00. 30 hrs. as per Ex Ka-3. P. W. 3 Sunpat Singh who was posted as Station Officer and in whose presence this case was registered took up the investigation. After recording the statement of head Moharrir he with A. S. I. Maksood and other constables reached village Harpali in the morning at 7. 00 a. m. He got the inquest report, Chalan lash, photo lash and other papers for post mortem prepared by the said inspector, Maqsood Hasan. Under his directions, the dead body of the deceased Dilshad was sealed and was sent through constable Bal-ram and constable Mahender Singh to Saharanpur for post-mortem. After recording the statements of Shamsad and Quasim, he prepared site plan on pointing out of Ashraf Ali Khan, he also took into possession blood stained and plain earth from the place of occurrence and prepared its recovery memo. He also found three empty cartridges of 12 bore on the place of occurrence he took them into possession and prepared its recovery memo. 'tiklis" and pallets were also found on the place of occurrence. They were also taken into possession and the recovery memo was prepared. The tractor was found on the spot and its Supurdagi was given to the first informant. On inspection three lights of the tractor were found in working condition and after completing the investigation remitted charge sheet against two appellant.;