S. C. Mathur, J. - (1.) THE present four appellants, viz., Jamal Ahmad, Sajjad Ahmad, Aziz Ahmad alias Lallu and Javed Ahmad Khan were tried along with Quresh Ahmad Khan,Razi Ahmad Khan and Babu Khan for the murder of Fakhrul Hasan alias Fakku son of Sri Izhar Alam alias Munna Miyan. THE murder of Fakhrul Hasan alias Fakku was said to have been committed on 14-3-1976 at 3.30 PM. THE father of Fakhrul Hasan, who lodged the first information report was alleged to have received the information of murder at about 5 PM at his Chakki and thereafter he was alleged to have lodged the first information report on that very day at 5.45 PM. THE distance between the place of occurrence and PS Manikpur where the report was lodged was five miles. THE report was alleged to have been scribed by Shah Parvez, the nephew of the informant. THE informant claimed to have gone to the Police Station himself along with his nephew Israr Husain.
(2.) THE occurrence had taken place in village Oonchgaon which is also known as Mubarakpur within the circle of PS Manikpur, District Pratapgarh. THE post-mortem on the body of the deceased was done by Dr. R. N. Katiyar (PW 9) on 15-3-1976 at 11.30 AM. THE prosecution in support of its case examined 16 witnesses. On behalf of the defence Sri R. K. Sharma (DW 1) was produced. As indicated hereinbefore seven persons were accused before the learned court below. Out of these seven persons four were convicted by the learned Sessions Judge and the remaining three were acquitted. All the seven persons who were tried by the learned Sessions Judge belonged to the same family and their relationship with each other would be evident from the following pedigree;- JUDGEMENT_185_ACRR_1979Image1.jpg All the persons shown in the; above pedigree except Smt. Naseem were accused before the learned Sessions; Judge. The appellant Sajjad and JamalJ were convicted under Sections 302/149 IPC while appellant Aziz Ahmad alias; Lallu and appellant Javed Ahmad Khan were convicted under Section 302 IPC simplicitor. Apart from an appeal having been filed on behalf of the four convicted persons, the State has also filed an appeal in respect of the sentence; awarded against the persent appellants,, The State has not filed any appeal against the acquittal of Quresh Ahmad Khan, Razi Ahmad Khan and Babu Khan shown in the above pedigree. Appellant Sajjad Ahmad Khan was said to have been armed with lathi, while appellant Aziz Ahmad Khan was alleged to have been armed with a pistol. Javed Ahmad Khan was alleged to have been armed with a Gandasa like weapon and he was alleged to have severed the head of the deceased from the body. The occurrence which resulted in the death of Fakhrul Hasan was alleged to have been witnessed by two persons, viz., PW 1 Mirchoo and PW 2 Mohan. The post-mortem examination on the body of the deceased by Dr. R. N. Katiyar indicated the following external ante-mortem injuries:- 1. Third degree burn 1"- x 3/4" on the left flank 1-1/2" above iliac crest C blackening 1/2" around it. 2. Incised wound 1/2" x 1/4-' x muscle deep on the lower part of left side chest just below left nipple. 3. Gun shot wound of entry 1-1/10" x 1-1/10" x chest cavity deep on the front and middle of chest below nipple:. 4. Gun shot wound of entry 2" x 1-1/2" on the front of right arm 3-1/2" below from the top of right shoulder gunshot wound of entry same 1" x 1" x chest cavity deep on in right side of chest frnt 4-1 /2" below top of right shoulder at She level of injury no. 4. 5. Gunshot 4/10" x 4/10" x bone deep on the front of chest 1/2" left to injury no. 3. 6. Incised wound 4-1 /2" x 5" x through whole of neck at the level left cirvical vertebrae at the base of neck. The neck and head is missing. 7. Incised wound 1-1/2" x 1" muscle deep in the left and upper part of chest with two abrasions 2"xl/2" on the left side of wound and abrasion 4" x 1/3" on the right side of the wound. 8. Incised wound 1-1/2'' x 3/4" x muscle deep on the front and upper part of left side chest near the middle with abrasion 1" x 2/10'- on the left side of the injury and abrasion 2-1/2" x 2/10" on the right side of the injury. 9. Gunshot wound of exit 3/10'' x 3/10" through and through corresponding to injury no. 3 with five pellets embedded just about the exit wound in an area of 2" x 2".
(3.) THUS according to the medical evidence the deceased had on his person gun-shot wounds and incised wounds. Around gunshot wounds blackening was present. The learned Sessions Judge believed the testimony of PWs 1 arid 2 whom he found to be neither partisan towards the complainants side nor inimical against the accused. He, therefore, found that conviction of the appellants could be based upon the independent testimony of PWs 1 and 2. He also believed the testimony of PW 4 Musa Khan who was alleged to have been the person who last saw the deceased in the company of appellant Jamal Ahmad. The learned Sessions Judge also believed the motive for the crime although he observed that in view of the presence of eye-witnesses motive was immaterial. The above judgment of the learned Sessions Judge was challenged by the appellant's learned counsel Sri S. N. Mulla on a number of grounds. Sri Mulla, however, did not dispute following facts before us : (1) That there was love affair between the deceased and Nasim, daughter of appellant Aziz Ahmad Khan ; (2) That Nasim instead of being married to the deceased was married to another person of district Fatehpur. (3) That Nasim, daughter of appellant Aziz Ahmad Khan disappeared after the above marriage. (4) That Fakhrul Hasan alias Fakku was murdered at the place and at the time alleged by the prosecution. His contention, however, was that the appellants had been falsely implicated in the case on mere suspicion arising from the fact that the love affair between Fakhrul Hasan and Nasim was not liked by the appellants and other members of their family. His suggestion was that in all likelihood the murder of Fakhrul Hasan was not witnessed by any one and when his headless body was discovered the present case was concocted on the basis of the suspicion hereinbefore referred to. He urged that the alleged eye-witnesses Mirchu and Mohan (PWs 1 and 2) although apparently neither inimical against the appellants nor partisan towards the complainant were actually got-up witnesses and had been procured under the influence of Sri Niaz Hasan whom the appellants and their family members had been opposing at elections and who exercised considerable influence in the area. The informant Shah Azbar Alam (PW 8) was also alleged to be wielding considerable influence in the area as he was Chairman of the Town Area Committee. Sri Mulla contended that even though it may not be possible for the appellants to point out material contradictions in the depositions of the alleged eye-witnesses there were inherent infirmities in the case which rendered the entire prosecution case incredible. His first attack was against the first information report itself. ;