- (1.) PRAFULLA C. Pant, J. These two appeals, preferred under Section 374 (2) of Code of Criminal Pro cedure, 1973 (hereinafter referred as Cr. P. C.), are directed against the same judgment and order dated 07-05-2007, passed by learned Additional Sessions Judge IInd, Dehradun, in Sessions trial No. 48 of 2004, whereby accused / ap pellants Abil alias Adil, Usman, Zeeshan and Imdad, are convicted under Section 302 read with Section 34 of Indian Pe nal Code, 1860 (hereinafter referred as I. PC.) and each one of the convicts/ap pellants is sentenced to undergo impris onment for life and to pay fine of Rs. 10. 000/ -. In default in payment of fine, the defaulter is directed to undergo fur ther two years rigorous imprisonment. It is also mentioned in the impugned judg ment that l/4th of the fine shall be paid as compensation to the widow of de-ceased-Maksood.
(2.) HEARD learned counsel for the parties and perused the trial court's record. Prosecution story in brief is that on 12-12-2003, at about 20:30 hours, Imran Khan (P. W. 3) lodged a First Infor mation Report (Ext. A-3) with Police Sta tion Doiwala, District Dehradun, with the allegations that his father Maksood Hasan (deceased) had a quarrel earlier with his neighbour Kamruddin over a disputed pathway. The police challenged informant's father Maksood (deceased) in that matter. On 12- 12-2003, at about 6:00 p. m. , when he (Maksood) was re turning to his house at Teliwala, after being released on bail near Abil's (ac cused/appellant's) shop, accused/appel lants Imdad Hasan, Zeeshan Ali, both sons of Kamruddin, and Usman, son of Mehndi Hasan, on exhortation of Abil, attacked and assaulted Maksood with a KHUKRI (a sharp edged weapon) and DANDAS (rods ). Accused/appellant Imdad is said to have been armed with KHUKRI, while Zeeshan, Usman and Abil were armed with DANDAS. Maksood suffered injuries on his head and other parts of body and fell down. Sayeed Ahmad (P. W. 1) and Yakoob (P. W. 2) came to the rescue of inform ant's father-Maksood. He was taken thereafter by his relatives to Government Hospital, Doiwala. On the basis of Ext. A-3, lodged by Imran Khan (P. W. 3) po lice registered a case crime number 156 of 2003, relating to offences punishable initially under Section 307 I. P. C. against all the four accused. The investigation was started by Sub- Inspector Ved Pal Tomar (P. W. 6), who interrogated the in formant and other witnesses. Accused/ appellant Abil was arrested by him. He also prepared site plan (Ext. A-8) after inspection of the spot. Blood stained Kurta was also taken by him and he pre-, pared memorandum (Ext. A-4 ). On 15-12-2003, he recorded the statement of injured Maksood Hasan (who later suc cumbed to the injuries), under Section 161 Cr. P. C. Copy of said statement is Ext. A-9. Meanwhile, on 12-12-2003, Dr. A. K. De (P. W. 4), a Medical Officer of Community Health Centre, Doiwala, recorded the injuries found on the per son of Maksood and prepared injury re port (Ext. A-5 ). Thereafter on 13-12- 2003, Dr. J. P Uniyal (P. W. 5) an Ortho paedic Surgeon of Community Health Centre, Doiwala took the X-ray of the skull of Maksood and prepared his re port (Ext. A-7 ). The crime which was ini tially registered as offence punishable under Section 307 I. P. C. against ac cused/appellants, was altered to offence punishable under Section 324 I. P. C. However, on 17-12-2003, condition of Maksood, started worsening. He was re ferred to Combined Medical Institute (C. M. I. ). Dehradun. As such, the case was once again altered to the offence punishable under Section 307 I. P. C. and when injured succumbed to the injuries, thereafter finally to offence punishable under Section 302 I. P. C. , where after the investigation was taken up from Ved Pal Tomar by Vijay Singh Goswami (P. W. 8), Station House Officer of RS. Doiwala. The dead body was taken into posses sion by the police and who got prepared inquest report (Ext. A-l ). The investigat ing officer also got prepared letter to Chief Medical Officer (Ext. A-10), police form No. 13 (Ext. A-ll), sketch of the dead body (Ext. A-12), sample seal (Ext. A-14 ). Thereafter, Dr. K. B. Joshi (P. W. 7) conducted the post mortem examination on the dead body of the de ceased on 18-12-2003, and prepared autopsy report (Ext. A-12 ). After comple tion of the investigation, Vijay Singh Goswami, Investigating Officer, submit ted charge sheet against all the four accused, namely- Imdad Hasan, Zeeshan, Usman and Abil for their trial in respect of offence punishable under Section 302 read with Section 34 I. P. C. The Magistrate, on receipt of the charge sheet, after giving necessary cop ies to the accused, as required under Section 207 Cr. P. C. , committed case to the court of Sessions, for trial. Trial court after hearing the parties, on 12-05-2004, framed charge of offences punish able under Section 302 read with Sec tion 34 I. P. C. against all the four ac cused, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Sayeed Ahmad, an eye-witness and scribe of the report, P. W. 2 Yakoob, another eye-witness, P. W. 3 Imran Khan, son of the deceased and informant, P. W. 4 Dr. A. K. De, who recorded injuries of Maksood Ahmad (de ceased), P. W. 5 Dr. J. P Uniyal, Orthopedic Surgeon, P. W. 6 Sub-Inspector Ved Pal Tomar, who initially investigated the crime, P. W. 7 Dr. K. B. Joshi, who conducted post mortem examination on the dead body of the deceased and P. W. 8, Sub-Inspector Vijay Singh Goswami, who completed the investigation. The oral and documentary evidence were put to the accused/appel lants, to which they alleged to be false and pleaded that they have been falsely impli cated due to enmity. In defence, D. W. I Iqbal Hasan and D. W. 2 Rayees Ahmad, were got examined on behalf of the ac cused. They stated that Maksood (de ceased) was a quarrelsome person who had enmity with other people also. After hearing the parties, the trial court found the accused/appellants guilty of offence punishable under Section 302 read with Section 34 I. P. C. , vide judgment and or der dated 05-05-2007. And after hearing on sentence on 07-05-2007, each one of them is sentenced to undergo imprison ment for life and directed to pay fine of Rs. 10,0007 -. In default of payment of fine, the defaulter was directed to under further rigorous imprisonment for a period of two years. Aggrieved by said judgment and order dated 05-05-2007 / 07-05-2007, criminal appeal No. 191 of 2007, is preferred by convicts Abil alias Adil and Usman, and criminal appeal No. 213 of 2007, is filled by convicts Imdad Hasan and Zeeshan Ali.
(3.) BEFORE further discussions, it is pertinent to mention here the injuries found on the person of Maksood (de ceased) by P. W. 4 Dr. A. K. De, who re corded the same on 12-12-2003, at about 7:00 p. m. at the time of his ad mission in Community Health Centre, Doiwala, and prepared injury report (Ext. A- 5 ). The same are being reproduced below : 1. Incised wound on left side of head about 9 cm above the left ear pinna. " Size about 4cm x. 5cm x scalp deep. Fresh blood is present, 2. Incised wound on left cheek about 1. 5cm below lateral angle of left eye. 3. Abrasion on left nostril. Size about 2cm x 1 cm. Fresh blood is present. 4. Incised wound on chin. Size 3. 5cm x. 5cm x muscle deep. Fresh blood is present. 5. Abraded contusion with trau matic swelling on dorsal aspect of left forearm about 10cm above wrist joint. Size about 7cm x 6cm. Fresh blood is present. Abrasion on left knee. Size about 3cm x 1,5cm. Fresh blood is present. ' In the opinion of the Medical Of ficer, all the injuries were fresh in dura tion. He further opined that injuries No. 3, 5 and 6, were caused by hard and blunt object and injuries No. 1, 2 and 4, were caused by sharp edged weapon. The supplementary report (Ext. A-6) shows that injury No. 1 and injury No. 5 in respect of which X-ray was advised were also found simple in nature. 6. Now, we think it proper to quote the ante mortem injuries, recorded by Dr. K. B. Joshi (P. W. 7), who conducted au topsy on the dead body of Maksood on 18-12-2003, at about 1:30 p. m. and prepared autopsy report (Ext. A-12 ). The same are being reproduced below : 1. Old stitched wound cm long (two stitches) on left side face cm below from lateral angle of left eye. 2. Old stitched wound of 2cm length over chin with two stitches. 3. Old stitched wound of 4cm in length with four stitches with dotted blood. Surrounding area is swollen in an area of 5cm x 5cm over scalp of skull, left side 10cm above from left ear. 4. Old lacerated wound of 1 x 1/2 cm size. Clotted blood present on upper boarder of left ear. 5. Old abrasion of l/2x 1/2 cm on bridge of nose. 6. Old abrasion of 1/2 x 1/2 cm on left side at surface of nose.;