GULAB Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) A. Introduction : This appeal arises from a judgment and order dated 19/6/2020 of the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal No 2172 of 1991. The appeal before the High Court arose from a judgment and order dated 13/11/1991 of the Sessions Judge Banda in Sessions Trial No 266 of 1990 (State Govt v. Idrish and Gulab). Idrish was convicted of an offence punishable under Sec. 302 of the Indian Penal Code 1860 ("IPC"). Gulab, who has moved this appeal, stands convicted under Sec. 302 read with Sec. 34 of the IPC and has been sentenced to imprisonment for life. Idrish died during the pendency of the appeal.

(2.) On 22 November 1989, Shabbir (PW1) submitted a written report to Police Station Mathaundh, District Banda at 10.30 pm as a consequence of which Crime Case No 78 of 1989 was registered under Ss. 302 and 34 of IPC against Idrish and the appellant. The written report stated that PW-1's brother Hanifa, who was about 26 years old, was working at the place of Majeed. After work, Hanifa had proceeded to a pond nearby to wash up. PW-1 went to call Hanifa at about 5.00 pm since Hanifa's daughter had taken ill. Idrish who was armed with a 0.315 bore country-made pistol and the appellant who was armed with a lathi came from the side of the Idgaah. The appellant is alleged to have exhorted Idrish stating that the "enemy has been found", as a consequence of which Idrish fired at Hanifa. The bullet is alleged to have hit the chest of Hanifa due to which he collapsed and died. Idrish and the appellant are alleged to have fled towards the village. The written report narrated that about 5 months prior to the incident, Hanifa and Idrish had been involved in a fight and Hanifa was arraigned as an accused in the criminal case. This is alleged to be the motive for his murder. PW-1 stated that the FIR was not lodged earlier due to the fear of the accused and that the written report was lodged after the villagers had arrived. The written report was scribed on 22 November 1989 by one Shabbir Khan at the behest of PW-1. The distance between the place of occurrence and the Police Station is 11 kilometres.

(3.) The autopsy was conducted by PW-5 on 23/11/1989. The following injuries were noted: