KADIR Vs. STATE

JUDGEMENT

(1.) Jail Appeal No. 2679 of 2008 under Sec. 383 Crimial P.C. has been filed by accused-appellant, Kadir through Superintendent of Jail, Aligarh whereas Criminal Appeal No. 1395 of 2008 under Sec. 374(2) Crimial P.C. has been filed by accused-appellant, Rahees. Both the appeals arise out of single judgment and order dated 19.02.2008, passed by Sri S.S. Lal, Additional Sessions Judge (Court No. 6), Aligarh in Sessions Trial No. 28 of 2006 relating to Case Crime No. 57 of 2005, P.S. Chandaus, District Aligarh whereby both accused-appellants have been convicted under Sec. 302 read with Sec. 34 Penal Code and sentenced to undergo life imprisonment with a fine of Rs. 5,000.00 each. In default of payment of fine, they have to undergo further simple imprisonment of two years each.

(2.) Factual matrix of the case as evident from First Information Report (hereinafter referred to as "FIR") as well as material available on record is as follows.

(3.) A written report, Ex.Ka-1 dated 01.07.2005 was submitted in Police Station Chandaus, District Aligarh by Informant, PW-1, Babu Khan, alleging that in the morning of 01.07.2005, Informant along with his brother, Afsar @ Gatta was present at his home. At about 09:30 AM, accused-appellants Rahees and Kadir, residents of Qasba, Chandaus, came over there and called Informant's brother Afsar out of the house. When Informant saw outside house, he found all the three (two accused and one Informant's brother) were talking with each other at some distance from Informant's house. After a little, Informant heard alarm of his brother, Afsar, craving to save him, whereupon Informant and his brother Pappu @ Saheed rushed to the spot and witnessed, Rahees and Kadir inflicting knife blows to Afsar. Informant and Pappu then raised alarm whereupon, Nanhe and PW-2, Nunna also reached there. They exhorted accused-appellants whereupon they (accused-appellants), assuming injured Afsar to be dead, left him in a pool of blood and fled towards market, wielding knives and holding threats. Due to terror created by accused-appellants, shopkeepers started downing shutters of shops and market began to close. All passers-by and travelers started hue and cry, running hither and thither resulting in stampede and affecting public peace and law and order badly. Incident pertained to at about 10:00 AM. In order to save life of injured Afsar, he was taken to Medical College and at the time of admission in the hospital itself, Doctor declared him dead. Leaving dead body in the hospital, Informant went to police station to lodge report. On the basis of Written Report Ex.Ka-1 presented by Informant, PW-1, a Case Crime No. 57 of 2005 under Sec. 302 Penal Code was registered at P.S. Chandaus, District Aligarh by Constable Clerk Gopal Prasad. He prepared a Chik Report (Ex.Ka-2) and also made entry in General Diary as Report No. 20 at 01:30 PM on 01.07.2005, a copy of which is Ex.Ka-3.