STATE Vs. SHAMSHAD ALIAS CHHOTA

JUDGEMENT

(1.) This Government Appeal preferred by the State under Section 378 of Cr.P.C. is directed against the judgment and order dated 25.8.1998 passed by Additional District & Sessions Judge, Roorkee, Haridwar, in Sessions Trial No. 295/1994 State v. Shamshad and others, whereby accused-respondents have been acquitted of the charge of offence punishable under Section 302/34 I.P.C.

(2.) Prosecution story in brief is that on 25.2.1994 at 1.30 p.m., written report (Ext.Ka.1) was lodged by complainant Khalil (PW-1) at P.S. Laksar with the averments that his nephew Ishhaq son of Ibrahim @ Abra had gone to plough the field. In the morning, at about 10.30 a.m. Shamshad @ Chhota, Ibad Ali and Visarat armed with country-made pistols came in the field and told to his brother that he is involved in several litigation against them, today they will teach a lesson to him. Thereafter, the three accused fired on his nephew with country-made pistols. His nephew ran away in order to save his life but he fell down in the field of Gufran. He also raised alarm in order to save his life, on which Fazla, Tahir and Rifaqat came over there and they saw the whole incident. The three accused fired on the nephew in the field of Gufran, due to which he died at the spot itself. On this information Chick F.I.R. (Ext.Ka.3) was prepared and case was registered wherein entry was made in the General Diary vide Ext.Ka.4. The investigation of the case was taken up by S.H.O. Anil Kumar (PW-4), who prepared the inquest (Ext.Ka.5), sketch of dead body (Ext.Ka.6), Police Form No. 13 (Ext.Ka.7), letter to C.M.O. Haridwar (Ext.Ka.8) and sample seal of dead body (Ext.Ka.9). The autopsy on the dead body of deceased was conducted by Dr. N.C. Saxena (PW-5), who prepared post mortem report (Ext.Ka.13). The investigating officer inspected the place of incident and prepared site plan (Ext.Ka.10) and took in his possession bloodstained earth and simple earth from the place of incident and prepared its recovery memo vide Ext.Ka.11. On 1.3.1994 the police arrested accused Visarat along with a pistol of 315 bore (alleged to have been used in the crime) and a live cartridge from jungle of village Mubarakpur. The recovered pistol, live cartridge, bullet taken out from the body of deceased during post mortem examination, bloodstained earth and clothes worn by the deceased, were sent for chemical examination to Forensic Science Laboratory, Agra and after completion of the investigation charge sheet (Ext.Ka.12) was submitted against the accused persons under Section 302 I.P.C.

(3.) The learned Magistrate on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302/34 I.P.C. against accused/respondents. The accused pleaded not guilty and claimed to be tried.