STATE OF UTTAR PRADESH Vs. JAMSHED

JUDGEMENT

(1.) These two appeals by the State of U. P. are filed against the judgment of a division bench of the High court of Allahabad acquitting the two respondents accused of the offences punishable under S. 302, 302 read with Section 34 Indian Penal Code and Section 25 (1 (a) of the Arms Act. Jamshed, the respondent in Criminal Appeal No. 526 of 1978, is the father of Kanwar Khan, the respondent in the other appeal. These two along with Qabool Ahmad father of Jamshed and Vakil Baboo another son of Jamshed were put on trial before the Additional District and Sessions Judge, Saharanpur for the offence of murder of one Ram Singh, the deceased in the case. It is alleged that on 21/06/1976 at about 5 p. m. in Village Gadharana, in furtherance of the common intention of the four accused persons, Jamshed committed the murder of Ram Singh by firing at him with a country-made pistol and Kanwar Khan gave a blow with Balkati a sharp-edged weapon. The trial court convicted Jamshed under Section 302 Indian Penal Code and sentenced him to death and he was also convicted under Section 25 (1 (a) of the Arms Act and sentenced to undergo one year's RI. Kanwar Khan was convicted under Section 302 read with Section 34 Indian Penal Code and sentenced to imprisonment for life. The other two accused were acquitted. The appeals were filed by Jamshed and Kanwar Khanalong with reference for the confirmation of death sentence by the High court, which by the impugned judgment acquitted both of them of all the charges. Hence the present appeals.

(2.) The prosecution case is as follows. All the four accused are the residents of Village Gadharana, Saharanpur District in Roorkee Tehsil. Public Witness 1 Dilawar Singh was Amin in Tehsil Roorkee for realising land revenues and other government dues from the cultivators. Village Gadharana also falls in his jurisdiction. The deceased Ram Singh was a peon working under him. The family of the accused borrowed about Rs. 33,000. 00 from the government and the same was outstanding against them.

(3.) On 21/06/1976 Public Witness 1 had gone to Village Gadharana in connection with the realisation of dues along with the deceased. At about 5 p. m. the accused Jamshed came to call him and the deceased saying that he would pay all the dues outstanding at his residence. On that Public Witness 1 and the deceased went with the accused to his house and Jamshed put them in a room of his house. Qabool Ahmad father of Jamshed and his two sons Kanwar Khan and Vakil Baboo were there. They asked Public Witness 1 to tell the accounts on which Public Witness 1 told them that a sum of Rs. 33,000. 00 stands outstanding. Thereupon the accused Jamshed asked Public Witness 1 to prepare the receipt. At this the deceased told that the receipt would not be prepared unless the money was received. Jarnshed asked him as to why the receipt would not be prepared. Thereupon Ram Singh, the deceased replied that the receipt would not be prepared unless the money was received. Then it is alleged that Qabool Ahmad and Vakil Baboo caught hold of Ram Singh and Jamshed took out a country-made pistol which he had kept hidden and placed the same below the ear of Ram Singh and fired at him. Kanwar Khan brought a Balkati and gave a blow with the same on the neck of the deceased, who died on the spot. After that Jarnshed aimed the pistol towards Public Witness 1 and forcibly made him prepare the receipts, Exs. Ka-1, Ka-2and Ka-3, with back dates. When Public Witness 1 was forcibly made to sit in a room in the house of accused, Public Witness 2, Daya Ram happened to come there searching for him. The accused persons made him also sit forcibly. At about 9 p. m. the accused persons made a Buggi ready, kept "phoos" and "bhoosa" and "kandas" in the Buggi and forced Public Witness s 1 and 2 to place the dead body of the deceased in the Buggi. While so Public Witness 2 managed to escape and he raised a hue and cry. On hearing the alarm Public Witness 3 and 4 and some other villagers reached there. Public Witness 3 and 4 and others snatched the pistol from Jamshed and they also released Public Witness 1. Those persons surrounded the Buggi, took out the dead body and also caught hold of the accused. They also recovered the receipts Exs. Ka-1, Ka-2 and Ka-3 from the pocket of Qabool Ahmad. Public Witness 1 on the spot prepared a report and went to the police station and lodged the same. On the basis of this report a case was registered and the investigation was taken up by Public Witness 9. Public Witness 9 seized the Buggi and other articles. He found the body of the deceased in the Buggi. He also seized the blood-stained articles. After the inquest report, the dead body was sent for post-mortem. Public Witness 5, the Doctor, conducted the post-mortem and he found two gunshot injuries on the left and right side of the neck. He also found an incised injury below the left ear. He opined that the death was caused by haemorrhage and shock due to gunshot wounds. The prosecution examined 10 witnesses and out of them Public Witness es 1, 3 and 4 are the material witnesses. The accused pleaded not guilty. On their behalf several suggestions were made thatthere was an altercation and exchange of abuses between Qabool Ahmad and Public Witness 1 and later on that night some miscreants surrounded Public Witness 1 and the deceased and killed the deceased and that Public Witness 1 managed to escape. The trial court relying on the evidence particularly that of Public Witness 1 convicted Jamshed and Kanwar Khan but acquitted the other two accused since they did not play any important role in the attack on the deceased. The learned Sessions Judge also believed the recovery of the weapons and the receipts Exs. Ka-1, Ka-2 and Ka-3.