ZAHOOR Vs. STATE OF U P

JUDGEMENT

(1.) -This is a criminal appeal filed on behalf of the accused-appellants from judgment and order dated 14th of October, 1982 passed by IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial No. 115 of 1980, State v. Babu and others, convicting accused Babu under Section 302, I.P.C. and accused Zahoor and Subrati under Section 302 read with Section 34, I.P.C. and sentencing each of them to imprisonment for life thereunder.

(2.) BRIEF facts giving rise to this appeal are that Mahipal Singh alias Puttam and Suraj Pal Singh were real brothers being sons of Zalim Singh and Ramesh Singh is the son of Suraj Pal Singh, Wazid, Sajjad and accused Subrati are real brothers. Zahoor is son of Sajjad and Shakoor that of Wazid. Accused Babu is son of Shakoor. Thus, Subrati is real uncle of Shakoor and accused Zahoor. Sagir is the behnoi of Shakoor. Since marriage party of the son of Sagir was to go from Dhayemau to Ghanghaul Zahoor engaged tractor-trolley of Mahipal Singh alias Puttan therefor on payment of Rs. 300. At about 8.30 a.m. on 18th of May, 1979 marriage party returned in the tractor-trolley to Dhayemau. The tractor-trolley was parked in front of the house of Sagir and luggage was being unloaded. In the meanwhile Zahoor, Subrati and Babu took Mahipal Singh alias Puttan at their place for payment of hire charges. A few minutes thereafter Ramesh Singh and Jagdish also reached there. At that time Mahipal Singh alias Puttan was sitting on a cot in the chhappar of Zahoor and talks were going on regarding payment of hire charges. Puttan was demanding Rs. 350 on the pretext that tractor-trolley had to go on kachcha way in excess and Zahoor and Subrati were insisting on payment of Rs. 300 as hire charges. In the meanwhile at the exhortation of Zahoor and Subrati Babu who was already armed with his father's licenced gun as he had taken the same in the marriage party fired with gun at Mahipal Singh alias Puttan from close range and sustaining the gunshot injuries at his chest Mahipal Singh alias Puttan fell on the cot and died instantaneously. Then Ramesh Singh alongwith Jagdish taking the tractor-trolley went to his village Chheechha and narrated the incident to his family members. Immediately Ramesh Singh scribed report of the said incident and handed over the same to his father Suraj Pal Singh who taking the written report went to police station Bindki situate at a distance of some eight miles from village Dhayemau and handed over written report of the occurrence to the police at 1.30 p.m. the same noon. The police registered a crime against the accused accordingly and started the investigation.

(3.) ON internal examination hematoma was found present under injuries No. 1 and 2 and left lung was found lacerated and perforated at places. Heart and pericardium were also found lacerated and perforated. Stomach contained semi-digested food 31/2 oz. The doctor found three gunshots of large size present on posterior wall of chest in an area of 3" 4" which he removed. He also removed two wadding pieces from heart. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.