Vijay Kumar Verma, J. - (1.) THIS appeal is directed against the judgment and order dated 29th June, 1982, passed by IInd Additional Sessions Judge Meerut, in S.T. No. 642 of 1976, State v. Hameed and others, whereby acquitting the co-accused Hameed, Riyasat, Dilshad S/o Hakeem, Intizar, Ilyas and Abid, the appellants-accused Munaf, Dilshad S/o Shabbir and Shakhawat have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 149, Indian Penal Code (in short the 'I.P.C.') and one year's rigorous imprisonment under Section 148, I.P.C. By the same judgment, the appellants-accused Khalid and Bhoorey have also been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 149, I.P.C. and six months' rigorous imprisonment under Section 147, I.P.C. No separate sentence under Sections 323 and 307 both read with Section 149, I.P.C. has been awarded in view of the sentence under Section 302/149, I.P.C. although these appellants were charged under Section 323/307 read with Section 149, I.P.C. also.
(2.) DURING the course of appeal, the appellants-accused Munaf and Bhoorey died and hence the appeal against them has abated. Background facts as projected by the prosecution, in a nutshell, are as follows : The house of the complainant Aurangzeb S/o Yusuf was situated adjacent to the house of Hameed S/o Lateef in Mohallah Mausam Khani of Kasba Kithore, under the jurisdiction of P. S. Kithore, District Meerut. On 2.8.1976 in the morning, Munaf and Bhoorey, both sons of Hameed, had dug the foundation with a view to construct their house. In the process of digging the foundation by Munaf and Bhoorey, the wall of the house of the complainant fell down. Shokin (deceased), brother of the complainant, lodged an F.I.R. regarding that matter at P. S. Kithore. At that time, the complainant was in Baghpat. He was called next day by Shokin. It is alleged that when on 3.8.1976 in the morning, the complainant was collecting people to hold the panchayat in the matter of causing damage to the wall of his house, the accused Hameed, Munaf, Bhoorey, Abid, Khalid, Dilshad S/o Hakeem, Intzar, Dilshad S/o Sabbir, Riasat, Shakhawat and Iliyas assembled at the house of Hameed and after making plan they all ascended on his roof. At that time, the accused Munaf and Dilshad S/o Shabbir were armed with guns and accused Sakhawat was having a country made pistol (katta). Other accused were having bricks in their hands. Making exhortation, the accused persons began to throw bricks indiscriminately towards the house of complainant, due to which, Aurangzeb, his brother Shokin and Yameen, neighbour Noor Khan and Smt. Akbari sustained injuries. On this the complainant and his brother Shokin and Yameen raising noise came out from their house and ascended on the roof of the house of their neighbour Akhlaq. On hearing hue and cry, the neighbour Tausif S/o Liyakat, Naqi S/o Lateef, Jameel S/o Mustaq also ascended on the roofs of their houses. Thereafter, the accused Munaf, Dilshad and Shakhawat fired shots from their respective fire arms towards the complainant and other persons of his side, due to which Yameen, Shokin and neighbour Noor Khan, who also had ascended on the roof of Akhlaq alongwith complainant, sustained fire arm injuries. The complainant saved himself taking the side of munder. On hearing the noise of fires, many people of the village arrived there. Seeing those people, the accused persons came down from the roof and fled away. This incident had happened at about 8.00 a.m. Further case of the prosecution is that Shokin died during treatment in District Hospital, Meerut on 8.8.1976. Carrying the injured persons, the complainant Aurangzeb went to P. S. Kithore and handed over written report Ext. Ka-1 there, which was got scribed from Tarif Ahmad S/o Abdul Waheed. On the basis of this written report, the then head moharrir Ram Swaroop prepared chick F.I.R. Ext. Ka-20 and registered a case under Sections 147, 148, 149 and 307, I.P.C. at Crime No. 239/76 at 9.30 a.m. on 3.8.1976 against the accused persons named above. Thereafter, the injured Shokin, Noor Khan, Smt. Akbari and Yameen were sent for medical examination to Pyare Lal Sharma District Hospital Meerut, where they were medically examined by Dr. Dilawar Singh P.W. 7. The following injuries were found on the person of these injured : 1. Injuries of Shaukin S/o Yusuf vide injury report Ext. Ka-5 (medical examination on 3.8.1976 at 10.30 a.m.) : (i) Gun shot wound (wound of entry) 1 cm. 1 cm. depth not proved. On (left) side chest in post. Axillary line .5 cm. below the axilla. Margins are inverted ; (ii) Gun shot wound (wound of entry) 1 cm. 1 cm. on (left) side abdomen in post Axillary line just below the costal margin ; (iii) Gun shot wound of entry 0.5 cm. 0.5 cm. on (left) side abdomen 6 cm. anterior to Inj. No. (2) ; (iv) Gun shot wound 0.5 cm. 0.3 cm. on (left) side back upper part 1.5 cm. away from mid line (wound of entry) ; and (v) Gun shot wound (wound of entry) 1 cm. 1 cm. on back in mid line lower part. 2. Injuries of Noor Khan S/o Chhotey vide injury report Ext. Ka-6 (Medical examination on 3.8.1976 at 10.40 a.m.) : (i) Gun shot wound (wound of entry) 1 cm. 0.5 cm. in the (right) Axilla blackening present around the wound ; and (ii) Gun shot wound (wound of entry) 1.5 cm. 1 cm. on (right) side chest 8 cm. above the (right) nipple. 3. Injuries of Yameen S/o Yusuf vide injury report Ext. Ka-8 (Medical examination on 3.8.1976 at 10.50 a.m.) : (i) Lacerated wound 1 cm. 1 cm. scalp on (left) side head 8 cm. above (left) ear ; (ii) Lacerated wound 0.5 cm. 1 cm. muscle on outer and lower part of (left) upper arm ; and (iii) Lacerated wound 0.5 cm. 0.5 cm. skin by side of injury (2). 4. Injuries of Smt. Akbari w/o Haneef vide injury report Ext. Ka-7 (Medical examination on 3.8.1976 at 11.30 a.m.) : (i) Lacerated wound 2.5 cm. 0.5 cm. bone on middle of fore head below hair line ; (ii) Lacerated wound 1 cm. 0.5 cm. skin on inner end of (left eyebrow ; and (iii) Abrasion 1 cm. 0.5 cm. on bridge of nose.
(3.) ON the same day, Aurangzeb was medically examined in District Hospital, Meerut by P.W. 6 Dr. S.L.M.C. Varshaney at 2.00 p.m. The following injuries were found on his person vide injury report Ext. Ka-4 : (i) A contusion 2.5 cm. 1 cm. on the right eyebrow ; (ii) A lacerated wound 2 cm. 0.5 cm. muscle deep on the back of left elbow joint ; and (iii) An abrasion 1 cm. 0.2 cm. on the right forearm back of inner side just near the wrist joint. The injured Shokin was admitted in the hospital, where his dying declaration Ext. Ka-21 was recorded by the then Executive Magistrate, Meerut Sri H. B. Pradhan P.W. 9 on 4.8.1976. He died during the course of treatment. After the death of Shokin on 8.8.1976, the case was converted under Section 302, I.P.C. On receiving information from the Hospital about the death of Shokin, inquest proceedings on his dead body was conducted by S. I. Suraj Singh P.W. 8 on 8.8.1976, during which inquest report Ext. Ka-9 and connected papers photo lash and Chalan lash Ext. Ka-10 and Ext. Ka-11 respectively were prepared and thereafter the dead body in sealed condition was sent for post-mortem examination, which was conducted by Dr. Brij Narain P.W. 11 on 8.8.1976 at 2.30 p.m. According to the post-mortem report Ext. Ka-14, the following ante-mortem injuries were found on the person of deceased : 1. Inlet firearm wound on lateral side of left side of chest 10 cm. from Apex of Axilla size 3/4 cm. ; 2. Two inlet fire arm wound on outer side of abdomen 10 cm. apart size 3/4 cm. According to Dr. Brij Narain, the deceased had died due to shock and haemorrhage as a result of ante-mortem fire arm injuries. ;