NAIM Vs. STATE OF U P

JUDGEMENT

(1.) -Criminal Capital Appeal No. 5530 of 2004 has been filed by the appellants Naim and Rafiq against the judgment of the Special Judge E. C. Act/Additional Sessions Judge, Bulandshahr dated 29.9.2004 convicting the appellants Naim and Rafiq to death under Sections 302/34, I.P.C., two years R.I. under Section 354, I.P.C. and 7 years R.I. and a fine of Rs. 10,000 under Section 452, I.P.C., in default of payment of fine, the appellants to undergo six months simple imprisonment. They have also been convicted under Section 25 (4) of the Arms Act and sentenced to two years R.I. The sentences were to run concurrently. A Criminal Reference No. 17 of 2004 has also been sent by the Sessions Judge, Bulandshahr for confirmation of the death sentence under Section 366, Cr.P.C. In connected criminal Appeal No. 5075 of 2004 the appellant Habib has been sentenced to imprisonment for life and a fine of Rs. 50,000 under Section 302/34, I.P.C. and in default of payment of fine to undergo further one year simple imprisonment. He has also been convicted to 7 years R.I. and a fine of Rs. 10,000 under Section 452 I.P.C. and in default of payment of fine to undergo six months simple imprisonment.

(2.) THE prosecution version was that on 24.10.1998, the deceased Dilshad had gone to the house of his brother Tahir and thereafter Tahir had gone back with Dilshad in order to drop him home. At about 8 p.m. in the night when they were reaching near the door of Dilshad's house, they heard the alarm of Dilshad's wife Smt. Shahida. THEy saw the appellants Naim and Rafiq armed with knives, catching hold of Shahida and pulling her. When Dilshad protested Naim and Rafiq left Shahida and clung on to Dilshad and told him that they would teach him a lesson. At that time the third appellant Habib arrived there. He is said to have exhorted the appellants to assault the "saale" and they had nothing to fear as he had arrived. THEreupon, Naim and Rafiq stabbed the deceased Dilshad with knives. On the cries of Dilshad and Tahir (P.W. 3), Salim, Irfan, Jamil and some other persons arrived there. On their alarm, the three accused persons left the deceased and climbed up the stairs of Dilshad's house, as they were being followed by the people of the mohalla. THEreafter they jumped down. After a chase the appellants Naim and Rafiq were caught hold of with knives and were given a beating by the people of the mohalla. However, Habib is said to have run away. When the informant Tahir returned, he found his brother lying in a seriously injured condition. In that state the injured-Dilshad was brought by the people of the mohalla to the hospital along with the appellants Naim and Rafiq, who had also received injuries while jumping down the roof on to the road. THE Doctor declared Dilshad dead on examining him. An electric light was burning in the house. Naim, Rafiq and the dead body of Dilshad were lying in the hospital surrounded by the residents of the mohalla. THE informant Tahir thereafter proceeded to P. S. Khurja Nagar, which was at a distance of 2 km., where he submitted a report (Ext. Ka-1) scribed by Shakir at 9.30 p.m. on the same date, i.e., 24.10.1998. Constable Clerk Onkar Singh, who was present in the police station prepared the chik report (Ext. Ka-7) on the basis of the written report given by the informant and also made a G.D. entry at 21.35 on 21.10.1998 (Ext. Ka-8). THE informant also deposited the knives recovered from the appellants Rafiq and Naim at the police station along with his report. THEir recovery memo was prepared by C. C. Onkar Singh.

(3.) ON internal examination, he found left pleura and left lung cut. There was 1-1/2 litre blood present in the pleural cavity. Spleen was cut. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. He stated that the injuries No. 1 and 2 were result of some sharp edged weapon such as knife. The injuries could have been caused on 24.10.1998 at about 8 p.m. The injuries were sufficient in the ordinary course of nature to cause death of deceased Dilshad.