- (1.) The alleged murder of Abdul Mukim, the conviction vide judgment dated 1.2.03, has brought the appellant, Kalu @ Shafiq, before this court. Vide the impugned judgment, the appellant was convicted for offences under Section 302 and was sentenced to life imprisonment and imposed with a fine of Rs. 1,000/- and to further undergo two months of simple imprisonment in default thereof. However, the appellant was acquitted of offences under Sections 147, 148, 120-B of IPC by the learned trial court.
(2.) The brief facts of the case are that on 9.8.98, one Kallu Khan (P.W.1), gave a report to the A.S.I., Police Station, Aklera wherein he claimed that "his son, Abdul Mukim and his daughter, Mobina Bai, had left for Khanpur yesterday in order to get the teeth of Mobina Bai fixed. Today, at around 4 O' Clock in the evening, my daughter Mobina Bai came running to the house and she told him that today when both the brother and the sister were returning back home after boarding the bus, while the bus was crossing Arania Ke Mali Ki Dhani, Kalu S/o Sultan and Sultan S/o Chhote Khan, both climbed into the bus. Immediately after climbing into the bus, Kalu struck Abdul Mukim near his right eye with a knife and also struck him on the right side of his neck. When the bus stopped, Usman, Bhuriya and the younger son of Sultan were hiding in the bushes while carrying a gun, lathies (Bamboo Sticks). She further claimed that she escaped from the scene of the crime and rushed back home. Upon her information, the complainant claimed that he immediately left for the Aklera Hospital where he discovered that his son had died." On the basis of this report the police chalked out a formal FIR. After a thorough investigation, the police submitted the charge-sheet against five persons namely, Kalu @ Shafiq, the appellant before this court, Sultan Khan, Usman, Rais and Bhuriya for offences under Sections 147, 148, 120-B, 302 read with Section 34 and in the alternative under Section 302 read with Section 149 IPC. In order to prove its case the prosecution examined twenty-two witnesses and submitted nineteen documents. Although the accused persons did not examine any witness, they did submit five documents in defence. After going through the oral and documentary evidence while the appellant has been convicted and sentenced as aforementioned, the other four co-accused persons, namely Usman, Rais, Sultan and Bhuriya have been acquitted by the learned trial court. Hence, this appeal before this court.
(3.) Mr. P.R.S. Rajawat, the learned counsel for the appellant, has argued that the star witnesses of the prosecution are Mobina Bai (P.W.2) and Shabbir Ahmed (P.W.3) However, Mobina Bai, is not only an interested witness, but is also an unreliable one. Secondly, there are glaring contradictions between the testimony of Mobina Bai and Shabbir Ahmed, although both of them claimed to be the eye-witnesses of the alleged incident. Thirdly, the testimony of Mobina Bai is not corroborated by the medical evidence. Fourthly, even if the prosecution case is taken to be true, then it is a case of a sudden fight without any premeditation. Moreover, only a single injury has been inflicted by the accused. Therefore, the case does not travel further than Section 304 Part II IPC. The appellant has already spent over six years of incarceration.;