MUNAWWAR Vs. STATE OF U.P.

JUDGEMENT

(1.) We have heard Mohd. Samiuzzaman Khan along with Ms. Beena Mishra for the appellant - Munawwar; Sri J.K. Upadhyaya, learned AGA, for the State and have perused the record.

(2.) This appeal is against the judgment and order dtd. 12/7/2007, passed by Additional Sessions Judge, Court No.7, Badaun in Sessions Trial No.544 of 2006 connected with Sessions Trial No.545 of 2006. In Sessions Trial No.544 of 2006, the appellant was prosecuted for offence punishable under Sec. 302 read with Sec. 34 IPC, arising out of Case Crime No.18 of 2006, police station Bisauli, district Badaun; whereas, in Sessions Trial No.545 of 2006 the appellant was prosecuted for offence punishable under Sec. 25 of the Arms Act, arising out of Case Crime No.94 of 2006, police station Bisauli, district Badaun. By the impugned judgment and order, in Sessions Trial No.544 of 2006, the appellant has been convicted under Sec. 302 read with Sec. 34 IPC and sentenced to imprisonment for life with fine of Rs.5,000.00 and a default sentence of one year; whereas, in Sessions Trial No.545 of 2006, the appellant has been acquitted of the charge of offence punishable under Sec. 25 of the Arms Act. Consequently, this appeal assails the judgment and order of conviction and sentence recorded under Sec. 302 read with Sec. 34 IPC in Sessions Trial No.544 of 2006. Introductory facts

(3.) The prosecution case in a nutshell, instituted on a written report (Exb. Ka-1), lodged by the informant - Jalaluddin (PW-1), at 16.30 hours, on 3/1/2006, at police station Bisauli, district Badaun (of which check report no.03 of 2006 (Ex. Ka-13) and GD Entry No.31 (Ex. Ka-14), giving rise to case crime no.18 of 2006, was made by PW-6), is that while PW-1 and his brother Raees Khan (the deceased) were returning on a motor cycle, after taking medicine for the deceased, at about 3.00 pm, when they took a turn to Bahoran's place of residence, on way, the accused, namely, Harvir, Iliyas (both not put to trial as they had died in a police encounter) and Munawwar (the present appellant), were noticed with firearms, coming from front. As soon as they (accused) saw the informant and his brother, they shouted that after a long time they could get an opportunity to finish off the deceased. Hearing their shouts, the deceased jumped off from the motorcycle, as a result whereof, the licensed gun which he was carrying on his shoulder fell and was lifted by co-accused Iliyas. All of them (accused) chased the deceased who ran towards the house of Sardar Mewa; there, the deceased was surrounded and killed by the accused persons. It is alleged that Iliyas shot the deceased from the gun which fell off the shoulder of the deceased and the other two accused fired at the deceased from their own country made pistols. It was alleged that the body of the deceased was lying at the spot and that the incident was witnessed by several persons of the village including Shamshad (PW-2) and Rahmat Khan (PW-3). The motive disclosed for the crime was animosity on account of the deceased being elected Gram Pradhan.