LATAFAT Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Trivedi, J. The present criminal appeal is directed against the judgment and order, dated 22-12-1979 passed by 1st Addl. Sessions Judge, Har doi convicting the appellants under Sec tion 302, IPC read with Section 34, IPC and sentencing each of them to Imprisonment for Life in connection with an inci dent which was alleged to have taken place on 15-9 1978 at about 5,45 p. m. in Mohalla Balai Kot within the police circle Shahabad District Hardoi.

(2.) INITIALLY, four accused persons were prosecuted in this case, but out of them accused Muazffar and Thullu were ac quitted by the learned Sessions Judge of the charges levelled against them. It is said that the accused-appellants used to live in Shahabad town and itself and are real brothers. Deceased Ahmad Ullah had mortgaged some land to Ashiq Ali, the father of the appellants for Rs. 5,000/- and it was one of the conditions of the. said agreement that after three years Ahmad Ullah will again take back the land after paying aforesaid amount. It is said that Ahmad Ullah asked Ashiq Ali after three years to re-sell the land in dispute but Ashiq Ali did not accept the request of deceased Ahmad UHah. It is further al leged that after some time a dacoity took place in the house of Ashiq Ali and in the said dacoity Ashiq Ali was killed, A report was lodged against this Ahmad Ullan but Ahmad Ullah fled away to Nepal. After some time, he returned to his village and thereafter, he surrendered himself before the concerned court in the said dacoity case. Just before 12-13 days before this, Ahmad Ullah was released on bail after coming out from jail, he again made a request from Liyaqat Ali, another son of Ashiq Ali to execute the sale- deed of the land for which Ashiq Ali had executed the agreement deed. Liyaqat Ali told him that the matter would be settled on 'friday' after 'friday prayers. It is said that on the date of the incident deceased Ahmad Ullah alongwith Yunus, Tasawwar, Nabi Ahmad and Shazad Khan went to the house of one Afaq but Latafat took them to his own house. All these persons sat out-side the house on the cots and some mohalla people also joined them. It is said that accused Latafat and Sharafat told them that their brother Liyaqat had gone to Hardoi for attending some case and he would be returning shortly after taking a date in the case. It is said that these persons waited Liyaqat upto 5. 30 p. m. but there after, the mohalla people went away saying that they would return after Liyaqat comes there. It is said that Ahmad Ullah and his companions also wanted to leave that place saving that the panchayat would be held on some other day but accused Latafat and Sharafat dissuaded them and asked them to wait for 5 or 10 minutes more. It is said that thereafter, the accused persons went inside the house and after some time all the accused persons namely: Latafat, Sharafat, Muzaffar and Thullu came out armed with pistols and accused Latafat fired shot from his pistol at Ahmad Ullah. Ahmad Ullah (deceased) fell down on the cot and accused Sharafat then, again fired another shot causing injuries to Ahmad Ullah. It is said that thereafter, all the accused persons ran away. It is alleged that thereafter, Yunus went to PS. Shahabad and lodged a first information report on the same day at about 6. 10 p. m. in the evening. The distance of the Police Station from the place of occurrence is two miles only. According to the FIR incident took place at about 5. 45 p. m. in the eve ning. PW 7 Inspector Mohan Singh was present at the Police Station when the case was registered. He immediately recorded the statements of the complainant as well as Head Constable Ramesh Chandra who registered the case and thereafter, he proceeded to the place of the incident. According to him, he reached the place of the incident at 6. 50 p. m. He prepared the inquest report and another relevant papers Ext. Ka-4 to Ext. Ka-6 and sent the dead-body of deceased Ahmad Ullah through constables Babu Ram and Shyam Manohar to mortuary for post-mortem ex amination. He also recorded the state ments of some other witnesses and there after, prepared, a site plan Ext. Ka 7. he also collected the blood-stained and plain-earth and recovered seven pellets from the place of the incident. The accused persons were not available at their house but there after, all the four accused persons sur rendered themselves in the court on 20-9-1978. After completing the investigation, the Investigating Officer submitted the charge- sheet against the accused persons. PW 8 Dr. V. K. Srivastava conducted autopsy on the dead-body of deceased Ahmad Ullah on 16- 9-1978 at 2 p. m. The doctor found the following ante-mortem injuries on his person: (1) Fire-arm wound of entry 2 cm x 2 cm x chest cavity deep with inverted margins on the back left side, 14 cm below inferior angle of left scapula. Blackening present in and around the wound. On dessection, 8th and 9th ribs on left side back were found fractured underneath the injury. On further dissection left pleura, left lung, left kidney and liver were found lacerated in the course of the injury. 7th and 8th ribs on right side front were found fractured left pleural cavity contained 6 ounces of fluid blood. Seven big shots were recovered embeded in the muscles of chest and abdominal wali on front on right side in an area of 7 cms. x 6 cms. One place of wadding material was found embeded in the left lung tissue. Abdominal cavity contained 20 ounces of fluid blood. (2) Fire-arm wounds of entry 7 in number in an area of 6 cms. x 5 cms. on the postero-lateral aspect of left thigh, 8 cms. below left gluteal fold. The margins were inverted each measuring 0. 75 cm. xo. 75 cm. (3) Fire-arm wound of exit with inverted margins, five in number in an area of 6 cms. x 6 cms. on medial aspect of left thigh, middle measuring 1 cm. x O. 75 cm. Note.-The wound communicate with the 5 wound of injury No. 2. Two big shots were recovered embeded in the muscles of left thigh. (4) Abrasion in an area of 4 cms. x 3 cms. on antero medial aspect of right thigh, 11 cms. above right knee joint. (5) Lacerated wound 3 cms. x 1 cm. x skin deep on the back of left leg middle.

(3.) PROSECUTION in support of its case examined eight witnesses, out of them PW 1 Yunus, complainant, P W 2 Shahzad and P W 4 Tasawwar Khan are the witnesses of facts. PW 3 Iqrar Khan is a witness of Panchayat and PW 5 Sayed Sartaj is a wit ness of the fact that on the date of the incident they were sitting on the cots and were waiting for Liyaqat at the house of the accused alongwith the deceased. PW 6 Head Constable Ramesh Chandra, registered the case and prepared the G. D. entries, PW 7 S. I. Mohan Singh conducted the investigation in this case and sub mitted a charge-sheet against the accused persons. PW 8 Dr. V. K. Srivastava con ducted autopsy on the dead-body of deceased Ahmad Ullah and submitted post-mortem report Ext. Ka 10.