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2003 DIGILAW 2765 (ALL)

AIJAZ v. STATE OF U P

2003-11-24

M.C.JAIN, ONKARESHWAR BHATT

body2003
ONKARESHWAR BHATT, J. This appeal has been preferred against judgment and order dated 8-6-1981 passed by the then VII Addl. Sessions Judge, Meerut in Sessions Trial No. 13 of 1980. All the four appellants, namely, Aizaz, Ahmad Hasan, Jan Alam and Imlak have been convicted under Section 302/34 IPC and sentenced to life imprisonment. They have also been convicted under Section 307/34 IPC and sentenced to seven years rigorous imprisonment. The sentences were ordered to run concurrently. 2. Sri S. P. S. Raghav, learned counsel for the appellants and Sri M. C. Joshi, learned A. G. A. for the State have been heard and record of the case has been carefully perused. 3. All the four appellants are inter related and they lived in village Ikla Rasoolpur, police station Parichhatgarh, District Meerut. Informant of the case Bashir Mohammad PW 1 as well as the deceased Ismail also lived in the same village. About 2-1/2 years earlier to the date of occurrence one Riazu disappeared from the village and could not be traced out. A case was registered at the police station against appellant Aizaz and others in which the deceased was doing Pairvi. The appellants had asked the deceased several times not to appear as a witness in that case or to do Pairvi of the case. Ismail did not agree to it due to which the appellants bore enmity with him. 4. In Ikla Rasoolpur, there is a school, namely, Deeni Islami Madarsa. A committee consisting of villagers of Ikla Rasoolpur and village Khanpur used to manage the affairs of the school. The deceased and the informant were members of the committee. There was some dispute regarding the post of Treasurer. Therefore, a meeting was to take place on 4-11-1979 in village Siyal. The appellants as well as the villagers of Ikla Rasoolpur knew about the said meeting. On the date of occurrence, i. e. 4-11-1979 the deceased Ismail and informant Bashir Mohammad started from village Ikla Rasoolpur for attending the meeting on a motor cycle. The deceased was driving the motor cycle while the informant was a pillion rider. At about 12 in the noon when they reached near the field of Prakash Khazoori there was a turning of the road. The deceased slowed down the speed of the motor cycle. At that very time, all the four appellants emerged from the field of Prakash. The deceased was driving the motor cycle while the informant was a pillion rider. At about 12 in the noon when they reached near the field of Prakash Khazoori there was a turning of the road. The deceased slowed down the speed of the motor cycle. At that very time, all the four appellants emerged from the field of Prakash. Appellants Aizaz, Ahmad Hasan and Jan Alam who were armed with country made pistols fired towards the informant and the deceased on exhortation of the appellant, Imlak. The appellant Imlak was armed with spear. The fire did not hit either the deceased or the informant. However, the deceased became panicky and motor cycle fell down on the road. The deceased left the motor cycle and his chappal and ran from the field of Khairati towards the village. All the four appellants chased him. Informant, Bashir Mohammad also ran towards them raising cry for help. After pursuing the deceased for about 100 yards the appellants caught hold of the deceased and fell him on the ground. The three appellants pushed him on the ground while appellant Aizaz fired at the deceased on the neck. Yakoob PW 2, Jan Mohammad PW 3 and one Hafizuddin alias Fauju and Sahimuddin came over there. The appellants thereafter went away in the southern direction. Ismail was dead and blood had also fallen at the place. Bashir Mohammad prepared a written report at the place of occurrence. He went to the police station on cycle and lodged it at the police station Parichhatgarh on 4- 11-1979 at 1 p. m. The distance of the police station from the place of occurrence is three kilometers. 5. Investigation of the case was taken up by Nepal Singh PW 5 in whose presence the case was registered at the police station. The dead body of the deceased was sent for post-mortem examination which was conducted on 5-11-1979 at 3. 15 p. m. by Dr. K. D. Sharma PW 4. The Doctor found gun shot wound of entry 2 cm x 2 cm on the left neck 7 cm below & behind the left ear. Blackening and charring were present around the wound, and gun shot wound of exit 4 cm x 4 cm on front of neck left side upper part. There was fracture of right lower jaw and also fracture of third rib and vertebra. Blackening and charring were present around the wound, and gun shot wound of exit 4 cm x 4 cm on front of neck left side upper part. There was fracture of right lower jaw and also fracture of third rib and vertebra. 118 pellets and wadding piece were recovered from the right portion of the neck. In the opinion of the Doctor, the deceased could have died on 4-11-1979 in the forenoon and the injuries were caused in very close contact from the body. 6. The occurrence had taken place in the broad day light at 12 noon. The deceased was murdered in the field of Naim from which placed blood was also recovered by the Investigating Officer. The place of occurrence has not been challenged by the defence. The Investigating Officer had also found motor cycle and a pair of chappal belonging to deceased some 16 paces towards south of the place of occurrence. The Investigting Officer reached the place of occurrence at 3. 05 p. m. on 4-11-1979 itself. The prosecution story has been unfolded and supported by three witnesses, Bashir Mohammad PW 1, Yakoob PW 2 and Jan Mohammad PW 3. Bashir Mohammad was accompanying the deceased on same motor cycle. Yakoob was near the place of occurrence while he was going for purchasing house hold articles from the market of Parichhatgarh. Jan Mohammad has his field near the place of occurrence where he was cutting green fodder. The two eye-witnesses viz. Yakoob PW 2 and Jan Mohammad PW 3 are distantly related to the appellants and seemingly had no animus against the latter. They had been put to searching cross-examination but nothing has came out in their testimony which could shake the veracity of their testimony. It has come in their evidence that they heard the shot and saw the deceased being pursued by the four appellants and ultimately the deceased was pushed to ground near the field of Naim where appellant Aizaz fired at the deceased on the neck. The medical evidence corroborates the statement of eye-witnesses. The presence of three eye-witnesses was accepted by the trial Court and there is no reason to disagree with that finding. 7. The Investigating Officer recovered front portion of a bullet from the place of occurrence on the back portion of which there was soil. The medical evidence corroborates the statement of eye-witnesses. The presence of three eye-witnesses was accepted by the trial Court and there is no reason to disagree with that finding. 7. The Investigating Officer recovered front portion of a bullet from the place of occurrence on the back portion of which there was soil. It had been contended that the injury sustained by the deceased was bullet injury. The prosecution case is consistent that Aizaz Ahmad fired from the country made pistol on the neck of the deceased. Dr. K. D. Sharma stated that injury sustained by the deceased was most probably caused by one fire. The presence of 118 pellets recovered from the dead body of the deceased is indicative that fire was made on the deceased by cartridge and not by bullet. It is not known what kind of fire arm the appellants had in their possession. If front portion of fired bullet having soil on its rear side was found on the spot, it cannot be connected with the fire arm injury which was found on the body of the deceased. It has come in evidence that the deceased and the informant were fired at while they were on motor cycle, which did not hit them. It might be that a bullet was also fired from the weapon which the three appellants were carrying and the same was found near the place of occurrence. The trial Court has rightly concluded that front portion of the bullet which was recovered from the place of occurrence is in no way connected with the fatal injury sustained by the deceased wherefrom 118 pellets were recovered at the time of post mortem. 8. The First Information Report had been lodged promptly at the police station and the contention that it had been anti timed is not acceptable. 9. It has come in evidence that the deceased and the informant were fired at by appellants Aizaz, Ahmad Hasan and Jan Alam but it did not hit them. Appellant Imlak has been assigned the role of exhortation and he was allegedly armed with spear. The deceased had no injury which could be attributed to spear. According to the prosecution case, Imlak also pushed down the deceased on the ground. If he had spear in his hand, he ought to have made use of it. Appellant Imlak has been assigned the role of exhortation and he was allegedly armed with spear. The deceased had no injury which could be attributed to spear. According to the prosecution case, Imlak also pushed down the deceased on the ground. If he had spear in his hand, he ought to have made use of it. In the absence of spear injury and considering the fact that Imlak has been given the role of exhortation alone, his presence and participation in the murder and murderous assault on the deceased and Bashir Mohammad appears to be doubtful and he is entitled to the benefit of doubt. In our opinion, participation of the appellants Aizaz, Ahmad Hasan and Jan Alam in murderous assault on the deceased and Bashir Mohammad and murder of the deceased is proved beyond doubt. Their conviction as well as sentences do not call for any interference. 10. In the result, the appeal is partly allowed. The conviction and sentence of appellant Imlak is set aside. The appeal is dismissed so far as appellants Aizaz, Ahmad Hasan and Jan Alam are concerned. They are on bail. They shall surrender forthwith and serve out the sentences awarded to them. 11. Judgment be certified. 12. The Chief Judicial Magistrate, Meerut shall lodge the appellants, Aizaz, Ahmad Hasan and Jan Alam in jail and send compliance report to this Court within two months. Appeal partly allowed. .