AIJAZ AHMAD Vs. STATE OF U P

JUDGEMENT

(1.) ONKARESHWAR Bhatt, J. Aijaz Ahmad has preferred this appeal against his conviction under Section 302 IPC. He has been sentenced to imprisonment for life and to a fine of Rs. 500. In default whereof six months' further rigorous imprisonment has been ordered. The judgment and order was passed in Session Trial No. 392 of 1980 by the then IV Additional Session Judge, Bijnor on 18-9-1981.

(2.) ONE Sultan Ahmad, deceased of the case, lived with his brother Shamim Ahmad PW 3 who is the informant of the case, in Mohalla Sabnigran, Police Station Nazibabad District Bijnor. The appellant also lived in the same Mohalla. The appellant bore enmity with the informant and his family members. Sultan Ahmad had a floor mill in Mohalla Munirganj which was a little ahead of the utensil shop of Ashraf PW 4. The house of the informant and Sultan Ahmad opened on the northern side on a road. The road in front of their house communicated with a road running east-west. In the above road there is a house of one Jai Prakash whereafter there is a Gher of one Kapoor Chand and thereafter there is a house of the said Kapoor Chand. In the middle of the house of Kapoor Chand there is an electric pole. From the said pole on the eastern as well as on the western side at a distance of about 100 feet each there are two other electric poles. In the Gher of Kapoor Chand also an electric bulb was fitted. All the electric poles and electric bulbs in the Gher of Kapoor Chand were emitting light. On 15-10-1979 at about 7. 15 p. m. informant Shamim Ahmad while sitting in the Baithak of his house heard the shot of fire. He proceeded near the Gher of Kapoor Chand and saw that his brother Sultan Ahmad was lying on the road by the side of his stomach and blood was oozing out from his back. Sultan Ahmad told the informant that the appellant had fired at him and had run away. Ashraf PW 4, Gaffar PW 5 and Abdul Sattar PW 6 also reached at that place. These witnesses told the informant that the appellant had fired at Sultan and Sultan also told the same fact to his brother. Shamim carried Sultan Ahmad on a Rickshaw to PHC Nazibabad. Dr. Harish Chandra Dua, PW 1 attended the injured Sultan Ahmad when Shamim Ahmad proceeded to police station Nazibabad, after getting the written report prepared by Nizamuddin at the hospital itself. The report was lodged at 8. 10 p. m. on 15-10-1979 SI N. P. Deshwal PW 10, Investigating Officer alongwith informant Shamim Ahmad went to the hospital and recorded the statement of Sultan Ahmad in the case diary, copy of which is Exhibit Ka-19. He also took into possession the blood stained and plain earth from the place of occurrence. At 9. 25 p. m. Tehsildar Nazibabad recorded the dying declaration of Sultan Ahmad in the hospital in presence of Dr. Harish Chandra Duwa. At 10 p. m. Sultan Ahmad died in the hospital. On 16-10-1979 the Investigation Officer prepared the inquest report and sent the dead body for post-mortem examination. PW 7 Dr. R. Prasad of the District Hospital performed the post-mortem examination on the dead body of deceased Sultan Ahmad on 16- 10-1979 at 3 p. m. He found following anti mortem injury: "fire-arm wound of entry 0. 5 cm x 0. 4 cm x abdomen cavity deep, edges inverted and lacerated. Blackening present around the wound present over the middle of back vertebral region 24 cm below the back of root of neck. On exposing the body right kidney was found badly lacerated, stomach was also found lacerated, 1-1/2 pound Ib clotted blood was found in the abdomen cavity, 12th thoracic vertebra was found fractured. Peritoneum was found lacerated. " In the opinion of the doctor cause of death was shock and haemorrhage as a result of fire arm injury.

(3.) ADMITTEDLY, the informant Shamim Ahmad PW 3 is not an eye- witness of the occurrence. He reached the place of occurrence after he heard the shot. He saw his brother Sultan Ahmad lying in injured condition on the road in front of Gher of Kapoor Chand. PW 4 Ashraf stated that he was passing through Mohalla Sabnigaran and was proceeding to his house in Mohalla Kalluganj after closing his shop. He stated that deceased Sultan Ahmad was going ahead of him at a sufficient distance. The witness stated that he saw the deceased lying near the Gher of Kapoor Chand having sustained injury in his back from which blood was oozing. He stated that Gaffar PW 5 and Abdul Sattar PW 6 also reached there. The witness stated that the deceased was telling that the appellant had fired at him and had run away, PW 5 Gaffar and Abdul Sattar PW 6 did not support the prosecution case and have been declared hostile. Gaffar stated that he did not see any occurrence while Abdul Sattar stated that he reached his house at about 11 p. m. in the night and he heard that deceased had been fired at and it was rumored that the appellant had fired at him.