DILSHAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri. Ram Babu Sharma assisted by Sri R.P. Dubey, learned counsel for the appellants and Sri. Saghir Ahmad, Mrs. Manju Thakur, Kumari Meena and Sri. J.K. Upadhyay, learned AGA in opposition.

(2.) These four criminal appeals have been preferred by the appellants Dilshad, Farukh, Tasawwar and Yameen against the judgment dated 14.10.2009 and order dated 15.10.2009 passed by Additional Session Judge Court No. 4, Ghaziabad in Session Trial No. 1098 of 2007 (State Vs. Yameen and others) , under Sections 307, 302 read with Sec. 34 and 120B Penal Code arising out of Case Crime No. 270 of 2007 Police Station Masuri, District Ghazaibad, Session Trial No. 1099 of 2007 (State Vs. Farukh) , under Sec. 25 of the Arms Act, arising out of Case Crime No. 271 of 2007 Police Station Masuri, District Ghazabad, Session Trial No. 1100 of 2007 (State Vs. Tasawwar) , under Sec. 25 of the Arms Act, arising out of Case Crime No. 272 of 2007 Police Station Masuri, District Ghazabad, Session Trial No. 1102 of 2007 (State Vs. Yameen) , under Sec. 25 of the Arms Act, arising out of Case Crime No. 280 of 2007 Police Station Masuri, District Ghazabad and Session Trial No. 1103 of 2007 (State Vs. Dilshad), under Sec. 25 of the Arms Act, arising out of Case Crime No. 281 of 2007 Police Station Masuri, District Ghazabad respectively by which all the four appellants have been convicted and sentenced to imprisonment for life and fine of Rs. 30,000.00 each under Sec. 302 IPC, 10 years rigorous imprisonment and fine of Rs. 15,000.00 each under Sec. 307 Penal Code and 2 years imprisonment and fine of Rs. 5000.00 each under Sec. 25 of the Arms Act together with default clause. Learned Session Judge had directed that all the sentences shall run concurrently.

(3.) Briefly stated the facts of the case are that one Idrish PW 1 (complainant) gave a written report at Police Station Masuri, District Ghaziabad on 28.6.2007 at about 10 a.m., alleging therein that while he along with his brother Ilyas and Mehboob son of Sabir was going to the Panchayat Ghar on 28.6.2007 at about 9 a.m. when they reached in front of the house of Islam son of Bundu he found that Yameen son of Mahmood, Farukh son of Mohammad Hasan, Tasawwar son of Munawwar all the residents of Village Nahal Police Station Masuri and Dilshad son of Ayyub resident of Village Dasna Police Station Masuri, District Ghaziabad were already waiting for them there and on seeing them they pulled out their country made pistols and on the exhortation of Yameen to finish of both the brothers as Idrish had escaped alive in the attempt made by them on his life earlier, all the accused started firing at them from their fire arms. Although the complainant was lucky to escape unhurt but his brother Ilyas received bullet injuries. On the hue and cry raised by the complainant and his brother Ilyas, large number of villagers reached the place of incident on which the four accused escaped from the place of incident firing with their fire arms and threatening to eliminate the complainant also. Considering the serious condition of injured Ilyas he was immediately taken to the Yashoda Hospital by his family members. Munawwar father of accused Yameen and Tasawwar in collusion with his accomplices had made an attempt on the life of the complainant earlier also but he had escaped and on account of commission of the aforesaid offence by them Munawwar and his friends were sent to jail and since the complainant was doing pairvi in the aforesaid case, Munawwar and his family members had become inimical towards him and his family members and wanted to murder them. On the basis of the written report of PW 1 Idrish, Case Crime No. 270 of 2007, under Sec. 307 Penal Code was registered against the accused on 28.6.2007 at 10:15 a.m., Chek FIR Ex. Ka8 was prepared by PW 6 Balram Singh who also made the relevant GD entry. After the registration of the FIR the investigation of the case was entrusted to PW 8 Tirmal Singh who reached the place of incident and after inspecting the same prepared the site plan of the incident Ex. Ka24 and collected blood stained and plain earth and a slipper from the crime scene and prepared the recovery memo Ex. Ka25. After the death of injured Ilyas in Yashoda Hospital on 28.6.2007 at about 4 p.m. as a result of injuries received by him in the incident, the inquest of the dead body of the deceased Ilyas was conducted by PW 8 Sub-Inspector Tirmal Singh on 28.6.2007 after appointing inquest witnesses. He prepared the inquest report Ex. Ka2 and other related documents namely, police form no. 13 Ex. Ka26, police form no. 379 Ex. Ka27, letter addressed to CMO Ex. Ka28 and specimen of seal Ex. Ka29 in his own handwriting and thereafter despatched the cadaver of the deceased for post-mortem.