MOHD ASIF Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 8/10/1982, passed in Sessions Trial No. 162 of 1981, by the then, learned Sessions Judge, Nainital, whereby Mohd. Asif (appellant No, 1) was convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and Iqbal Ahmad (appellant No. 2) was convicted under Section 302 read with Section 34 of the I.P.C., and each one of them has been sentenced to imprisonment for life.

(2.) Prosecution story in brief is that on 15/2/1981, Mohd. Saeed (deceased) along with his friend Shakeel (P.W. 3) was watching night show of movie 'Aakhiri Insaaf in Sharda Cinema Theatre, Khatima. At about 10:30 P.M., appellant Iqbal Ahmad went inside the Cinema hall and asked Mohd. Saeed to come out. His friend appellant Mohd. Asif, meanwhile, stood outside. Mohd. Saeed followed Iqbal Ahmad and came out. Both the appellants Mohd. Asif and Iqbal Ahmad, thereafter started quarrelling with Mohd. Saeed. After some heated exchange of words, both the appellants Iqbal Ahmad and Mohd. Asif drew out their knives. Appellant Iqbal Ahmad caught hold of Mohd. Saeed and appellant Mohd. Asif struck a blow with knife on the back of the Mohd. Saeed (deceased). The incident was witnessed by P.W. 1, Kanhaiya Lal (a betel shopkeeper in the Sharda Cinema); P.W.2, Hem Raj (gatekeeper of the Cinema hall); P.W. 3, Shakeel Ahmad (a friend of the deceased who was watching movie with him). Soon after the incident, on hearing shouts for help, P.W. 4, Constable Bachche Singh and another Constable Bhisma Singh also reached at the spot. Appellant Mohd. Asif was apprehended at the spot while appellant Iqbal Ahmad succeeded in running away from the scene, P.W. 3, Shakeel and P.W. 4, Constable Bachche Singh took the injured Mohd. Saeed to nearby hospital and thereafter P.W. 3, Shakeel lodged the first information report (Ext. A -1) with the police station Khatima against both the appellants, which was registered as crime No. 55 of 1981 under Section 307 of the I.P.C. Meanwhile, the dying declaration (Ext. A-14) of the deceased was recorded by P.W. 10, Javed Usmani, Sub-Divisional Magistrate, Khatima. Whereafter, injured Mohd. Saeed was referred from Primary Health Centre, Khatima for further medical treatment to Pilibhit. However, after four days of the incident, Mohd. Saeed died of the injuries sustained by him and the case was converted into one under Section 302 of the I.P.C. P.W. 8, S.I. Hari Shankar on receiving information of death of Mohd. Saeed went to the hospital and took the dead body in his possession and got prepared inquest report (Ext. A -9) and other papers namely photo sketch of the dead body (Ext. A -10), police form No. 13 (Ext. A -11), letter requesting for post-mortem examination (Ex A -12) and sent the dead body for postmortem examination. P.W. 11, Dr. A.K. Mehrotra conducted the post-mortem examination of the dead body on 21.02.1981. According to the said Medical Officer cause of death was pulmonary embolism on the left side. He prepared the post-mortem examination report (Ext. A -15). Initially, the investigation was done by P.W. 7, S.I. Radha Krishna Bahuguna and after the crime was converted to one under Section 302 of I.P.C., further investigation was conducted by P.W. 5, Laxmi Ram Arya, Station House Officer. After the statements of witnesses were recorded and site plan (Ext. A -8) was prepared, charge sheet (Ext. A -3) against both the appellants, was submitted in the court by P.W; 5 (Investigating Officer). Concerned learned Magistrate after registering the charge-sheet provided necessary copies, as required under Section 207 of the Cr.P.C., to the accused persons and committed the case to the court of Sessions for trial.

(3.) The learned Sessions Judge, after hearing the prosecution and the defence, framed charge of offence punishable under Section 302 of the I.P.C. against accused appellant Mohd. Asif and the one punishable under Section 302 read with Section 34 of the I.P.C. against appellant Iqbal Ahmad. Both of the accused appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1, Kanhaiya Lal, eyewitness and betel shopkeeper in the Cinema hall; P.W. 2, Hem Raj, eyewitness and gatekeeper of the Cinema hall; P.W.3, Shakeel, eyewitness and friend of the deceased who was watching movie with him P.W. 4, Constable Bachche Singh, who reached at the spot soon after the incident and helped P.W. 3, Shakeel in apprehending appellant Mohd. Asif on the spot; P.W. 5, Constable Laxmi Ram Arya (Investigating Officer), who submitted the charge-sheet; P.W. 6, Head Constable Trilok Cand, who registered the first information report (Ext. A -1) and prepared check report (Ext. A -4) and made entry in the general diary (extract Ext. A -5); P.W. 7, S.I. R. K. Bahuguna, who initially investigated the crime; PW. 8, S.I. Hari Shankar, who got prepared inquest report (Ext. A -9) of dead body and also witnessed the preparation of photo sketch of the dead body (Ext. A -10), police form No. 13 (Ext. A -11), letter requesting for post-mortem combination (Ext. A -12); P.W. 9, Dr. L.D. Khatri, who recorded the stab injury of Mohd. Saeed (deceased) when he was brought in an injured condition on 15.02.1981, at 11:00 P.M. in Primary Health Centre, Khatima and who prepared injury report (Ext. A -13); P.W. 10, Javed Usmani the then, Sub-Divisional Magistrate, Khatima who recorded the dying declaration (Ext. A-14), at about 11:30 P.M. on 15.02.1981; P.W. 11, Dr. A.K. Mehrotra, who cqnducted the autopsy and prepared post-mortem examination report (Ext. A -15). Apart from this affidavit of P.W. 12, Constable Om Swaroop was filed, who accompanied the dead body to Mortuary for post-mortem examination. The oral and documentary evidence was put to the accused persons under Section 313 of the Cr.P.C., in reply to which they alleged that the same was wrong and they have been falsely implicated, but they did not adduce any evidence in defence of their case. After hearing the arguments of prosecution and that of the defence, learned Sessions Judge found both the appellants guilty of the charge framed against them and convicted accused appellant Mohd. Asif under Section 302 of the I.P.C. and accused appellant Iqbal Ahmad under Section 302 read with Section 34 of the I.P.C., and after hearing on sentence, sentenced each of them to imprisonment for life.