Subhash Chandra Agarwal, J. - (1.) THIS criminal appeal has been filed against the judgement and order dated 8.2.2000, passed by Special Judge (S.C/S.T Act)/Additional Sessions Judge, Gorakhpur in S.T. No. 144 of 1998, whereby the appellant Noorullah was convicted under Section 302, I.P.C and sentenced to undergo imprisonment for life alongwith fine of Rs. 5,000 and one year R.I. under Section 324, L.P.C. Sentences awarded to the appellant were to run concurrently.
(2.) THE incident took place on 2.12.1997 at about 10 a.m. in village Saraya P. S Belipur, district Gorakhpur. THE F.I.R. Ext. Ka-1 was lodged by the complainant Saeed Khan, P.W. 2 on the same day at P.S. Belipur at 2.45 p.m. The prosecution story as unfolded in the F.I.R. is that the Smt. Najma, sister of complainant Saeed Khan and deceased Aziz Khan was married to the appellant Noorullah about 12 years ago. The appellant occasionally used to beat his wife Najma. Smt. Najma called her brothers to her house for talks of compromise. On 2.12.1997, at about 9.30 a.m. complainant Saeed Khan (P.W. 2), his wife Munni Devi (P.W. 3) and Aziz Khan, younger brother of the complainant went to the house of their sister Najma in village Saraya and started counselling Noorullah not to beat his wife Najma. Noorullah became angry and started abusing. Aziz asked Noorullah not to abuse. Out of anger, Noorullah took out a hansiya from his house and attacked the complainant causing injuries on the neck of the complainant. The complainant and his brother snatched the hansiya from the appellant. In the meantime, Noor Hasan, the brother of the appellant Noorullah and his cousin Nabi Hasan also reached there. Noorullah tried to attack Aziz also. The complainant asked his brother Aziz Khan to go back home saying that he would settle the matter amicably. After Aziz left the house of the accused, Noorullah armed with a spear followed Aziz hurling abuses and gave a spear blow in the chest of Aziz near the hut of Ram Samujh and Aziz Khan died on the spot. The incident took place at about 10 a.m. Since there was no known person in the village, the complainant got scared and went to his sasural at Miyan Bazar, Gorakhpur and from there, assembled his relatives and came to the Police Station, got the F.I.R.. Ext. Ka-1 scribed by Usman Gani (P.W. 1) and lodged F.I.R. at P.S. Belipur on the same day at 14.45 hours, on the basis of which Case Crime No. 933/1997 under Sections 302, 307 and 504, I.P.C. was registered against the appellant Station Officer In-charge Belipur Kamrul Hasan (P.W. 7) commenced the investigation. He recorded the statement of the complainant and his wife Smt. Munni and went to the place of occurrence and prepared site plan Ext. Ka-6. The complainant being injured was sent by the Investigating Officer for medical examination. He appointed the panches, held the inquest proceedings and got prepared the inquest report Ext. Ka-7 through S.I. Sri N. K. Singh Rathore and after preparing the necessary papers for post-mortem, sent dead body of Aziz Khan for post-mortem examination through constables Markandey Tiwari and Paras Rai.
(3.) ON 5.12.1997, the Investigating Officer arrested the accused Noorullah and on his pointing out, recovered the spear from the shop of the appellant and prepared recovery memo Ext. Ka-11. The Investigating Officer also recorded the statement of other witnesses and after completing the investigation, submitted charge-sheet Ext. Ka-12 against the appellant. The complainant Saeed Khan was medically examined on 2.12.1997 at 8 p.m. at District Hospital, Gorakhpur by Dr. S. S. Parvez (P.W. 5) and the following injuries were found on his person. 1. Linear abrasion 3 cm. long on the right side neck, reddish coloured. 2. Abraded traumatic swelling 2 x 1 cm. on the middle of left index finger. 3. Complaint of pain over the middle of chest without visible injury. As per injury report Ext. Ka-3, the injuries were caused by hard blunt object and friction, were simple in nature and were about 6-12 hours old.;