STATE OF U P Vs. BABU AND

JUDGEMENT

(1.) SUDHIR Agarwal, J. This is an appeal against acquittal of all accused by the Special/additional Sessions Judge, Meerut vide judgment dated 12th of June 1990, in Sessions Trial No. 418 of 1987. Accused were ten in number, namely, Babu, Wasiyat, Chaman, Shahzama, Zafar, Kalwa, Saida alias Sayeed Hasan, Anwar, Mohd. Ilyas and Riyasat who were prosecuted for offences under sections 147, 148, 149 and 302 IPC. Earlier, the accused were fortunate enough since their appeal was dismissed by an Hon'ble Single Judge (it was cognizable at that time by Single Judge) at the threshold vide order dated 10th July, 1992 but the destiny did not allow the matter to rest here and the State preferred Criminal Appeal No. 118 of 1996 before the Apex Court. It was allowed by the judgment dated 29th January, 1996 and setting aside the order of the Hon'ble Single Judge, the Apex Court remitted the matter back with the direction to grant leave, admit appeal, issue notice to the respondents and then decide the matter on its own merits. Accordingly, the Division Bench vide order dated 14. 5. 1996 granted leave to appeal and issued notices to the respondents and Trial Court's record was summoned. After service of notice on the accused respondents, vide order dated 20. 5. 2005, this Court admitted the appeal. That is how this appeal has come up before this Bench for hearing afresh. It is to be noticed at this stage that during pendency of the matter, accused respondent No. 7 Saida alias Sayeed Hasan son of Hamid and accused respondent No. 9 Mohd. Ilyas have died and, therefore, the appeal stood abated against them and presently, it is concerned with only 8 accused respondents, namely, Shahjama, Chaman, Zafar, Kalwa, Anwar, Riyasad, Babu and Wasiyat.

(2.) WE have heard Sri Karunand Ba-jpayee, learned A. G. A. for the State-appellant, Sri P. N. Mishra, Senior Advocate assisted by Sri V. M. Zaidi Advocate for the accused respondents and have perused the material on record.

(3.) IT is pertinent to mention here that on 18. 4. 1983 at 8. 15 P. M. , an FIR had already been lodged at the Police Outpost Mundali of Kharkhoda Police Station, District Meerut as case crime No. 38 of 1983, under sections 147/148/149/307 IPC, by Sakhawat (accused of case crime No. lll/a/83, under section 302 IPC, registered on the FIR lodged by Jamshed Ali PW 5), setting forth the story that he was pairo-kar in certain criminal cases from the side of prosecution wherein Intzar, Ishtiyaq, Mahtab, Nawab and others were accused of the murder of one Phurkan. On account of pairvy being done by him, the aforesaid persons bore enmity with the complainant Sakhawat and wanted to kill him. As he did not possess any firearm licence, therefore, for his personal security at night he used to keep with him armed persons of his village holding valid, licence. On 18. 4. 1983 at about 6. 45 P. M. , he was sitting in his Baithak (drawing room), along with Sayeed Hasan and Kalwa, Ikram, Chhotey, Intzar, Irshad and Abid. Sayid Hasan and Kalwa were armed with DBBL guns. All of a sudden Intzar, Ishtiyaq, Nawab, Mahtab, Adil, Shamsher all residents of village Radhna and Ramzani R/o village Saundat alongwith 4-5 other unknown miscreants came there running, hurling abuses and shouting at Sakhavat to come out of his house and they would be putting an end to his pairokari and would send him also to his deceased brother and sister's son. Tney resorted to indiscriminate firing, injuring Ikram and Chhotey who were sitting along with the complainant Sakhawat. Few pellets allegedly dashed with the walls. Hearing the noise of firearm, several persons of the village including Zafar and Anwar reached the spot with their licensed gun. Some other persons were having Balkati and lathis. IT is further stated in the FIR that the persons on the side of Sakhawat, opened fire from their licensed guns in self defence and some persons threw bricks at the miscreants. In the incident Intzar, Ishtiyaq and Shamsher all residents of village Radhna and Ramzani of village Saudat were killed. Certain firearms were said to be found in possession of the deceased. This FIR was registered as case crime No. 38 of 1983 under sections 147/148/149/307 IPC and 39 to 42 of 1983, under section 25 of the Arms Act, Police Outpost Mundali under police station Kharkhoda, district Meerut.