AIZAZ Vs. STATE OF U P

JUDGEMENT

(1.) Appellants call in question legality of the judgment rendered by a Division Bench of the Allahabad High Court upholding the conviction of the appellants for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC). So far as the appellant Aizaz- A1 is concerned, the High Court also upheld his conviction for offence punishable under Section 307 read with Section 34 IPC. The other two appellants were found guilty of offence punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. It is to be noted that four persons faced trial. Though the learned VIIth Additional Sessions Judge, Meerut found A-1 to A-4 guilty, the High Court directed acquittal of Imlak (A-4).

(2.) Background facts as projected by prosecution in a nutshell are as follows: All the four accused are inter related and they lived in village Ikla Rasoolpur, police station Parichhatgarh, district Meerut. Informant of the case Bashir Mohammed (P.W.1) as well as Ismail (hereinafter referred to as the deceased) also lived in the same village. About 21/2 years earlier to the date of occurrence i.e. 4.11.1979 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. In Ikla Rasoolpur, there is a school, namely, Deni 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 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 accused persons 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 Imlak. Imlak was armed with spear. The gun shot 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 accused persons chased him. Informant, Bashir Mohammad also ran towards them raising cry for help. After pursuing the deceased for about 100 yards, the accused persons caught hold of the deceased and pushed him to the ground. The three appellants pushed him to the ground, while appellant Aizaz fired at the deceased on the neck. Yakoob (P.W.2, Ian Mohammad (P.W.3) and one Hafizuddin alias Fauju and Sahimuddin came over there. The accused persons thereafter went away in the southern direction. Ismail died instantaneously 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 1.00 P.M. The distance of the police station from the place of occurrence is three kilometers. FIR was registered and investigation was undertaken. After completion of the investigation charge sheet was filed and since accused persons pleaded innocence, they were put on trial. Before trial Court the primary stand of accused was that the prosecution has Supplressed the genesis of the occurrence. The evidence of PWs 1, 2 and 3 according to them did not inspire confidence. In any event, it was submitted that Section 34 has no application so far as the A2 and A4 are concerned. The trial Court did not accept these contentions and recorded conviction. Before the High Court in appeal the stands were reiterated. The High Court found that the evidence was inadequate so far as A4 is concerned, but confirmed the conviction so far as the appellants are concerned.

(3.) In Supplort of the appeal, it is submitted that the occurrence essentially took part in two stages. Even if there was any animosity between Al and the deceased, A2 and A3 had nothing to do with him. Additionally in the second part also there was no use of any weapons by appellants Nos. 2 and 3. The only allegation against them is that they held the deceased and fell him on the ground.