ALIM Vs. STATE

JUDGEMENT

(1.) This criminal appeal arises out of the judgment and order dated 30.9.1993 passed by the learned Sessions Judge, Ghaziabad in S.T.No. 15 of 1980, State Vs. Ramzani & Alim, under sections 302/34 & 307/34 of IPC, P.S. Hapur, District Ghaziabad whereby the appellant Alim has been found guilty of the offences under sections 302 and 307 of IPC and has been sentenced to undergo imprisonment for life for his conviction under section 302 of IPC and 5 years rigorous imprisonment with a fine of Rs.5,000/- for his conviction under section 307 IPC.

(2.) We have heard Sri J.J.Munir, learned counsel for the appellant and learned AGA, Smt. Usha Kiran appearing on behalf of the State and have gone through the lower court's record.

(3.) The brief facts of the case as contained in the written report, Ext.Ka.1, submitted by one Farukh (P.W.1) to the police on 4.8.1985 in the early morning at 5.00 A.M. are that the occurrence had taken place in the intervening night of 3 /4.8.1985 at about 3.30 A.M. Bundu Teli had died about six months prior to the occurrence. He was married to two real sisters Aliman & Bano. From his first wife Aliman, a son Ramzani and a daughter Anno were born. From the second wife Bano one son Rafiq and two daughters Saidan and Rasidan were born. Bundu Teli, during his life time, had divided his property between his two wives. However. accused Ramzani, the son of first wife was not happy with the partition as he desired a bigger share in the property. About six years prior to the occurrence, accused Ramzani had made an attempt to kill his father by firing on him. Bundu Teli had sustained fire arm injuries on his head but fortunately he survived. Ramzani had also set the house on fire once but Bundu Teli did not lodge any FIR. The first informant Farukh, who is the husband of Saidan and son-in-law of Bundu Teli and his second wife Bano, further alleged that Ramzani had continued to extend threats to his father-in-law and his brother-in-law Rafiq but they never paid any heed towards those threats. In the intervening night of 3/4.8.1985 at about 3.30 a.m. when the informant Farukh, his wife, children, his mother-in-law Smt.Bano (second wife of Bundu Teli) and brother-in-law deceased Rafiq, were sleeping in the outer room due to continuous crying of his youngest daughter, who was ill, the informant and his wife had a disturbed sleep. The three accused persons namely Ramzani, Daya Nand and Alim came inside the room by climbing up the stairs made of bamboo standing against the wall in the courtyard. Ramzani had a country made pistol in his hand, Daya Nand was also armed with a country made pistol and Alim, who is real nephew of Ramzani, had a knife with him. The room was lit by electricity bulb. Soon after entering into the room accused Ramzani and Daya Nand asked the informant's wife to calm down the child and to feed her. Meanwhile all the family members except the deceased Rafiq had awakened. Daya Nand and Ramzani tied the hands and legs of the informant with a rope. On this, the wife of informant pleaded to Ramzani not to kill his husband. The mother-in-law of the informant also requested the assailants not to kill him saying,"Yeh to paraya hai, ise mat maro chahe mujhe goli mar do". Thereupon the accused persons untied the ropes of the informant and tied the hands and legs of his mother-in-law and Rafiq with the respective cots on which they were sleeping. After that Ramzani and Daya Nand fired on Rafiq with the country made pistol they were carrying with them and Alim made an attack on the head of informant's mother-in-law Bano by knife. On hearing the hue & cry and sound of gun fire, their neighbours Deen Mohammad and Zaki alongwith several other persons reached there. Whereupon the accused and other assailants fled away. The witnesses saw and recognized them while they were running away from the spot. The brother-in-law of the informant Rafiq died on the spot due to fire arm injuries and his mother-in-law was taken to the district hospital in injured condition for treatment.