Ramesh Sinha, J. - (1.) The present criminal appeal has been preferred by the appellants against the judgment and order dated 31.5.1982 passed by the IVth Additional Sessions Judge, Rampur in S.T. No.226 of 1981, whereby the appellants, namely, Zamir Khan and Munney Khan have been convicted and sentenced under Section 302 I.P.C. for life imprisonment and under Section 323 I.P.C. for three months R.I. and appellant, namely, Pyare Khan has been convicted and sentenced under Section 302 read with Section 34 I.P.C. for life imprisonment and also under Section 323/34 I.P.C. for three months R.I. and all the the sentences were directed to run concurrently.
(2.) The prosecution case as appears from the FIR is that the deceased, namely, Zubair was the real brother of the informant, namely, Shoeb and their father, namely, Bhoora Khan alias Mohd. Ahmad Khan had died. Accused Pyare Khan is the grand-father of the informant Shoeb (PW1), whereas the accused Zamir Khan and Munney Khan are real brothers and are uncles of the Shoeb. There were two ancestral adjoining house of the parties, out of which one is Pucca House while the other is Kuccha House. In a portion of Pucca House, accused Munney Khan resides, whereas in another portion of the same house the informant Shoeb along with his brother Zubair (deceased) and mother resided. The accused Pyare Khan, Zamir Ahmad and one Kallan, uncle of the informant Shoeb resided in Kuccha House. After the death of the father of the informant-Shoeb, grand-father and uncles of Shoeb had formed a group against him and his deceased brother Zubair and wanted to oust them out of the house. About 9-10 days prior to the present incident, a quarrel took place between the deceased Zubair and accused Zamir Ahmad, regarding which Zamir Ahmad had lodged a report at police station Ganj against the deceased Zubair who was sent to jail. After being released from jail, the deceased Zubair had filed a complaint against accused Zamir Ahmad, which further annoyed the accused persons against the informant Shoeb and his deceased brother Zubair.
(3.) It is further stated in the FIR that on 2.5.1981, the deceased Zubair along with Shoeb and others were working in their factory of Karchob. At about 11 a.m. accused Zamir Ahmad came to the said factory and asked the deceased Zubair to accompany him to accused Pyare Khan as he had called him for entering into a settlement in respect of the house. At once, the deceased Zubair accompanied him to the Kuccha House. They were also followed by the Shoeb (informant), Tunni, Azam and Shakir who were also working in the said factory and also by Ashiq Khan and Shamshoo Khan who were present outside the factory. Accused Pyare Khan and Munney Khan met them in the said house. The accused Munney Khan had a black bag in his hand. In the courtyard of the said house, all the three accused persons started abusing the deceased Zubair and grappled with him. At that moment, Smt. Zaibun Nisha (PW2) had also come on the roof of a nearby house and she also raised an alarm to save them. At that time, accused Pyare Khan pointing out his fingers towards the informant Shoeb and his brother Zubair scolded his two sons, namely, Zamir Khan and Munney Khan and exhorted them to shoot the deceased Zubair. On which, accused Munney Khan took out a country-made pistol from his bag and accused Zamir Khan took out a countrymade pistol from the folds of his trouser (Pyzama). Accused Munney Khan fired a shot from his countrymade pistol by putting it at the back of the deceased Zubair, while the accused Zamir Khan fired a shot from his countrymade pistol above the right ear of Zubair and on account of the gunshot injuries, Zubair fell down on the ground and died instantaneously and his brain was blown out. When the informant Shoeb and others tried to intervene and tried to apprehend the accused persons, accused Munney Khan and Zamir Ahmad again loaded one cartridge each in their respective country-made pistols, on which Shoeb and others had moved backward at that juncture. The accused Pyare Khan, grand-father of the Shob picked up a lathi and hit it at Shoeb and thereafter the Shoeb and others had fled away from the place of occurrence. The dead body of the deceased Zubair was lying there and informant Shoeb rushed to the police station Ganj to lodge a First Informant Report of the incident. On the bass of oral report lodged by the informant Shoeb about the occurrence on the same day at about 11.30 a.m. at police station Ganj which was endorsed in the General Diary and true copy of which has been marked as Ext. Ka.5.;