NVARUDDIN Vs. SHAKOOR

JUDGEMENT

(1.) These four appeals, the first by a relative Anvaruddin and the others by the State of U.P., arise out of a single incident which occurred on February 11, 1973 at about 11 a.m. wherein Siraju and his son Ali Mohammad were killed. Nine persons, namely, (i)Shakoor, (ii)Fayaz Ahmad, (iii)Ahsan, (iv)Allauddin, (v)Shamshu, (vi) Alam, (vii) Wasla, (viii) Gaju and (ix) Kallu were arraigned. before the learned Sessions Judge, Meerut, principally on the charge of having formed an unlawful assembly for the murder of the aforesaid two persons. They were charged under Ss. 147 and 302 read with S. 149, I.P.C. The learned Sessions Judge acquitted two of them, namely, Gaju and Kallu. of all the charges levelled against them and directed that they be set at liberty whereas the remaining seven persons were convicted under S. 3021149, I.P.C. and were sentenced to suffer imprisonment for life. Accused Shakoor, Alam, Fayaz Ahmad, Ahsan, Allauddin and Wasla were also convicted. under S. 148, I. P. C. and were sentenced to suffer rigorous imprisonment for one year. Both the sentences were directed to run concurrently. Accused Shamshu was convicted under S. 147 and was directed to suffer rigorous imprisonment for six months. In his case also the substantive sentences were ordered to run concurrently. Against the said order of conviction and sentence recorded by the learned trial Judge, three appeals, being Criminal Appeals Nos. 2933, 2976 and 3303 of 1973, were preferred by the convicted accused persons. All these three appeals were disposed of by a common judgment rendered on October 5, 1978. The High Court came to the conclusion that the evidence tendered by the prosecution suffered from several infirmities and it was not safe to place implicit reliance on the three eye-witneises who were close relatives of the deceased. In this view that the High Court took, it allowed the appeals and acquitted all the seven accused persons of the-charges levelled against them. Feeling aggrieved by the order of acquittal Anvaruddin, a relative of the deceased, sought special leave of this Court, which was granted. The State also filed three separate appeals against the aforesaid seven accused persons. In all these four matters special leave having been granted, the appeals are before us for disposal.

(2.) The facts in brief are that the deceased and the accused persons were residents of the same village and neighbours. It appears that one Shabbir, brother of accused Shakoor, was murdered sometime back. The deceased Siraju and his son Ali Mohammad were tried along with two others for the said murder. Siraju and Ali Mohammad were convicted by the trial Court and were sentenced to suffer imprisonment for life. Their two companions were however acquitted Siraju and Ali Mohammad preferred an appeal challenging the order of their conviction which was admittded to hearing by the High Court. The High Court also enlarged them on bail pending the disposal of the appeal. 'The case of the prosecution is that on their being enlarged on bail the accused Shakoor and his family members were displeased and they took a vow to punish thern even before the disposal of the appeal. When Ali Mohmmad learnt about the same he preferred an application to the District Magistrate, Meerut on November 22, 1972 seeking protection on the ground that his life was in danger. It does not appear from the record that any protection was extended to him.

(3.) On February 11, 1973, at about 11 a.m. when Siraju, his son Ali Mohammad and P.Ws. 1 to 3 were in the house, the nine accused persons suddenly entered the house armed with lethal weapons. Shakoor was armed with a gun, Fayaz Ahmad, Ahsan and ,Kallu were armed with tabals, Allauddin was armed with a pistol, Shamshu and Gaju were armed with lathis and Alam and Wasla wielded spears. After these nine persons entered the house of Siraju, Shakoor declared that they would take revenge for the murder of his brother Shabbir and so saying he fired a shot at Ali Mohammad. Almost simultaneously Allauddin also fired a shot at AL Mohammad. As both the shots hit Ali Mohammad he collapsed. Thereupon, the rest of the accused persons attacked Siraju as well as Ali Mohammad and killed them on the spot. The entire incident, claims the prosecution, was witnessed by P.W. 1 Ismail, P.W. 2 Babu Khan, P.W.3 Hajra, w/o Ali Mohammad and Anvaruddin, the appellant of Criminal Appeal No. 119 of 1979 who was not examined as a witness on the plea that he was won over. After the incident P.W. 1 Ismail called P.W. 6 Zafruddin from his village and dictated the First Information Report concerning the crime. This report Was carried to Police Station, Partapur, eight miles from the place of occurrence, and was delivered to P.W. 5 Head Constable, Visheshwar Nath at about 1.06 p.m. The crime was registered and the Investigating Officer reached the scene of occurrence by about 2 p.m. An inquest was held on the dead bodies and thereafter the dead bodies were forwarded for post-mortem examination. The witnesses to the incident were interrogated and their statements were recorded in due course. The panchanama of the scene of occurrence was drawn up and after completion of the formalities the Investigating Officer undertook a search for the accused persons. It appears that all the accused except Gaju and Kallu surrendered to the Court of February 13, 1973. Gaju and Kallu also similarly surrendered on February 15, 1973. The residences of the accused were searched but the weapons of attack were not found. On the completion of the investigation a charge-sheet was submitted against the aforesaid nine persons.