CHANDKHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452,302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code ('IPC' for short). Against five of them, including the two appellants, a charge under Section 148, IPC and against the other four a charge under Section 147, IPC were also framed. Besides, a separate charge under Section 302, IPC was framed against appellant Shabbu. The trial ended in an order of acquittal recorded in favour of all the persons arraigned. Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others. After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302, IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions. The other three were convicted of all the charges levelled against them except the one under Section 302/149, IPC and sentenced to imprisonment for the period already undergone. Assailing the above order of conviction and sentence only the two appellants have filed this appeals invoking their statutory right under Section 379, Criminal Procedure Code.

(2.) Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W. 6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj. Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeals arises he left his services and joined the set-up of Faheem Khan. On May 26, 1977 at or about 1 P.M. the two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again. When Faheem Khan refused to oblige they assaulted him. For that incident, he lodged a complaint with the police the same afternoon. However, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md. Jama Khan.

(3.) The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him. For that purpose the two appellants went armed with knives and the rest with other weapons including danda. Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2). Immediately after entering the premises the accused persons started assaulting them. Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas. When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there. In the mean time some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum. When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him. While coming out of the house Shabbu thrust his knife on the neck of Shah Alam felling him down. All of them then fled away. Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious. Before, however, any treatment could be administered Shah Alam died. While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station.