- (1.) K. D. Shahi, J. This appeal has been filed by Margoob, Insar and kashi against the judgment and order dated 23-6-1982 passed by Shri Om Prakash, the then Ses sions Judge, Saharanpur in Sessions Thai No. 1 of 1982, State v. Margoob & Ors. , convicting and sentencing the appellants to undergo life imprisonment for having committed the offence under Section 302 read with Section 34, IPC.
(2.) THE brief facts of the case are that Sri Islam son of Mumtaj lodged an First Information Report at police station Badgaon district Saharanpur on 31-7-1981 at 7. 20 p. m. with the allegations that an enmity was going on with his uncle Faiyaz and Faiyaz's nephew (Bhatija) Margoob. Before two months of the occurrence Mar goob has filed a case in the Court at Dev-band against Faiyaz. On 31-7-1981 itself at about 5. 30 p. m. , the informant Islam, his uncle Faiyaz and daughter Israna aged about 10 (ten) years were coming back from Devband towards village side. Ac cused Margoob, his servant Insar son of Deenu and Kashi son of Ikram came armed with country made pistol. THEy met them at the border of village Nonabadi and Simon and as they reached near them, Insar fired at Faiyaz. Faiyaz tried to run away but he fell down in the field. After he fell down both Margoob and Kashi fired at Faiyaz. THE informant and Israna ran towards the village and the accused per sons ran away after killing Faiyaz. THE occurrence was witnessed by Matloob P W-2 and Mamudeen etc. who were working in the fields. The informant took Faiyaz to police station at Ghore-buggi (Horse-Court) and got the First Information Report (Ext. Ka-1) lodged at the police station Badgaon, district Saharanpur. When the FIR was lodged, the victim was alive and, therefore, the case was registered under Section 307, IPC only. The Invstigating Officer took the investigation of the case in his hands. He recorded the statement of injured Faiyaz under Section 161, Cr. P. C. at the police station itself. The copy of the said state ment of Faiyaz is Ext. Ka-12. The said statement (Ext. Ka-12) has been accepted because the victim subsequently died and that has been tried to be used as dying declaration.
(3.) HOWEVER, the Investigating Officer took the blood stained clothes of Faiyaz in his possession and prepared Fard (Ext. Ka-2 ). On 1-8-1981, the Investigating Of ficer reached village Nunabadi and recorded the statement of Israna and Im-amuddin. He inspected the spot in presence of informant Islam and Israna and prepared the site plan Ext. Ka-13. He did not get any blood on the spot because it rained. Hari Ram (PW-8), the Investigat ing Officer, however, recovered one cartridge from the spot and prepared the Fard Ext. Ka-14. He also recovered one Machis (Match) box, one cartridge and one pair of shoes where Faiyaz had fallen down and prepared Fard Ext. Ka-15. On 2-8-1981, victim Faiyaz died and the case was converted under Section 302, IPC. The blood stained clothe (Tah-mad) of deceased Faiyaz was deposited at the police station on 3-8-1981 by Ghasitu, nephew of the deceased and the Investigating Officer prepared Fard Ext. Ka-9. On 3-9-1981, the investigating of the case was taken up by the Station Officer In-charge Sri O. P. Sarsoot and later on from O. P. Sarsoot to Sri VD. Jakhmola and the Investigating Officer has submitted the charge-sheet Ext. Ka-16.;