BADRI Vs. STATE OF U P

JUDGEMENT

(1.) S. N. Sexena, J. This criminal appeal is directed against the judgment and order dated 2. 7. 1980, whereby Shri R. R. Jatav the then learned Sessions Judge, Hamirpur convicted appellants Badri and Katori under Sections 394 and 302 read with Section 34, IPC and sentenced each of them to undergo rigorous imprisonment for three years and imprisonment for life for the said offences respectively. The facts, which gave rise to the present appeal, are as follows:

(2.) ACCUSED Badri and Katori belonged to village Budhawara within Police Station Ajanar district Hamirpur. Complainant Ghulam Shabbir (PW-1), Ghulam Ayyub (PW-2) and deceased Ghylam Shabbir were residents of village Balapur within Police Station, Balapur district Akola of Maharashtra. They used to do the business of cloth including bed-sheets and daris at different places and in connection with the same had come to this State also. The incident resulting in the murder of Ghulam Shabbir had taken place on 8-11-1978 at about 12 noon in the precincts of village Rampura. The above named persons had taken a house on rent in Tikamgarh in district Chhatarpur and from there used to go to different places to sell cloth. Two days prior to this incident, they had gone to village Budhawara and had stayed there on 6-11-1978, Both the accused had asked the deceased and his companion Ghulam Shabbir to sell some cloth on credit. They, however, had not agreed for the same due to which altercations had taken place. The accused persons abused and gave threats to both of them. Next day, the deceased and his companion Ghulam Shabbir had gone to village Sagunia where they had sold cloth during the day. On the day of this incident i. e. 8-11-1978, they were going to village Ajanar for carrying on their business. Complainant Ghulam Shabbir was ahead of his companions by a few steps. Deceased Ghulart Shabbir was following him while Alimuddin alias Sheikh and Ghulam Ayyub were behind Ghulam Shabbir. They were in the precincts of village Rampura and had reached near a drain described as Nala by the witnesses and also shown in the site-plan Ext. Ka-8 as Nala by the Investigating Officer, when the two accused came out of a Jwar field and started moving in the same direction ahead of the compalainant Ghulam Shab bir. On reaching near the Nala, both the accused persons started washing their hands in the water. Complainant Ghulam Shabbir enquired from them about the way to village Ajanar upon which they hurled abuses and further directed them to proceed silently on the way on which they were going. It was about 12 noon at that time. The complainant and his companions including Ghulam Shabbir proceeded further on the way. The story further goes that Complainant Ghulam Shabbir and crossed the Nala and was proceeding further when accused Katori inflicted lathi blow upon Ghulam Shabbir which hit him. Ghulam Shabbir raised alarm and accused Badri then took out a country made pistol (Tamancha) and fired a shot upon him. Ghulam Shabbir was hit by the shot and had fallen dead on the ground. The Complainant and his companions rushed towards the accused persons upon which accused Badri with the help of his country made pistol threatened them with serious consequences. ACCUSED Katori took out Rs. 700 from the pocket of the deceased Ghulam Shabbir and both the accused, thereafter, ran away in the northern direction. Complainant Ghulam Shabbir left Alimuddin alias Sheikh and Ghulam Ayyub at the place of occurrence and himself went to Police Station Ajanar where he lodged the FIR of the incident with the Police at 12. 30 p. m. vide Ext, Ka-3. The Police registered a case in the general diary and the investigation followed as usual. The dead body of Ghulam Shabbir, after completion of the necessary formalities by the Investigating Officer, was sent to the mortuary for Post- mortem examination. After the completion of the investigation, the Police challaned the accused persons for trial under Sections 394 and 302, IPC.

(3.) THE internal examination of the dead body had revealed laceration of the heart and the left lung. THE stomach was found empty and digested food was present in the small intestines. THE large intestines contained faecal matter and gases. In the opinion of the Doctor. Ghulam Shabbir died as a result of shock and haemorrhage due to the injuries to the heart by a fire-arm. He had found 26 pellets and 3 'tikli' pieces from the dead body. He stated that the death of the deceased Ghulam Shabbir could have taken place at about 12 noon on 8-11-1978 and a margin of six hours on either side was possible in his opinion about the probable time of death.