MUMTAZ Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Verma, J. Appellants Mumtaz, Mohd. Amin, Mohd. Sharif and Babu were convicted in Sessions Trial No. 117 of 1976 by learned Sessions Judge Fatehpur vide order dated 31st October, 1979 and Mumtaz under Section 302, IPC and the rest of the three appellants under Section 302/34, IPC were sentenced to life imprisonment. It is against this conviction that the present appeal has been filed.

(2.) APPELLANTS Mohd. Amin, Mohd. Sharif and Babu are residents of village Mohammadpur Kalan, appellant Mumtaz is married in village Mohammadpur Kalan, appellant Mohd. Amin and Mohd. Sharif are brothers, all of them belong to the same party. According to the prosecution deceased Khalil Uddin and his brother Jaleel Uddin PW 2 and Razak PW 1, Peer Mohammad PW 5, Shiekh Jalal PW 3 and Hakeem Uddin and others used to keep their Khalihan in Pajawa Oarhwa which is a about 1 1/2 fur longs South of village Mohammadpur Kalan. The incident occurred on the midnight 31-3-1974/1-4- 1974 in the Khalihan. The deceased and the witnesses were sleeping in their Khalihan shown in the site plan prepared by the I. O.

(3.) SO far as the presence of PW 1 Razafc, PW 2 Jalil Uddin, PW 3 Sheikh Jalal and PW 5 Sheikh Mohammad is concerned all of them consistently deposed before the trial Court they were present in their Khalihan near the place of occurrence. The Investigating Officer who visited the spot found that 'the deadbody of the victim was lying near a Mahua tree at place marked by asterisk in the site plan and that towards east of the same there was paira of wheat crop which was being crushed and towards East of the same, stocks of wheat crop were collected, at place 'a', PW 2 Jalil Uddin was lying on a cot at place 'c' towards North of place 'a', PW 5 Peer Mohammad was present at place 'd' towards North of place 'c' which is about 28 paces from the place of occurrence. Sheikh Jalal PW 3 was sleeping at place CE' towards North of place 'd' which is about 22 paces from the place of incident. PW 1 Razak was at place 'f' which is towards West at a distance of about 110 paces from the cot of the deceased. There is not much controversy so far as the presence of these witnesses is concerned because it is natural for villagers to protest their Khalihan during harvesting sessions when harvesting operations are continuing, there fore we are inclined to believe that these witnesses were present in the Khalihan when the occurrence took place.