ISMILE KHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) THE Appellants have challenged their conviction, by filing this appeal, under Section 302/149 of the IPC and sentence of imprisonment for life and fine of Rs. 1,000/ - each, in default of payment of fine additional RI for 1 year each and under Section 148 of the IPC RI for 2 years each and Appellants 2 Karamat and No. 5 Yunus have been convicted under Section 25(1)(A) of the Arms Act and sentenced to RI for one year with fine of Rs. 1,000/ - each in default of payment of fine 3 months additional RI each vide judgment passed by learned First Additional Sessions judge, Ujjain in Sessions Trial No. 183/1998.

(2.) THE factual matrix of the prosecution case as placed before the trial Court is that PW4 Aashik was the Sarpanch of Village Umariya. On 15.5.1998, he came to Badnagar, a tahsil place, having big market for surrounding villages with his brother deceased Usnian in a Jeep. They parked Jeep by the side of Shivaji road and going on foot towards place known as Dabri. They reached near the shop of Kamal Kasliwal in the noon at 12:30 p.m., the Appellants having country made pistol, sword, farsi reached over there and Appellant Karamat shot fire at the chest of Usman. Usnian sustained several fire arm injuries on right chest and fell down, thereafter Appellant Arif struck a sword blow on the neck of Usman. The wounds started profuse bleeding. Aashik tried to save Usman at which Appellants rushed towards him and Appellant Ismile Khan made exhortation to assault him, but because of cry for help by Aashik Appellants fled away. PW8 Shaukat and PW2 Iqbal reached on the spot. They had also witnessed the incident. Deceased was assaulted, because of personal and political enmity, by the Appellants. Aashik took Usman in a horsecart (Tonga) to civil hospital, where on examination by PW7 Dr. L.A. Kapadiya, he was declared dead. Aashik lodged FIR (Ex.P -5) in Police Station, Badnagar recorded by PW10 Town Inspector Mahendra Singh Shaktawat. Police also recorded merg intimation (Ex.P -15) at the instance of Aashik. Sub -Inspector Fatehbahadur Singh (PW13) prepared inquest report (Ex.P -29) in presence of witnesses and sent the dead body for post -mortem examination. PW7 Dr. L.A. Kapadiya conducted post -mortem and gave report (Fx.P -9). Shri Shaktawat reached on the spot and effected seizure of blood stained and controlled earth, he also prepared spot map (Ex.P -16). On production of blood stained clothes empty cartridges by sweeper of Civil Hospital, the same were seized by Head Constable (PW5). The Appellants were nabbed. On disclosure statements being made by Appellants Karamat, Arif, Asif, Yunus, Kudrat country made pistol, sword, sword, country made pistol and farsi with lathi were seized, respectively. Seized swords were sent to doctor for opinion which is Ex.P -10. On examination by Arms Mohrir PW12 Rajkumar Yadav, he found country made pistol in working condition. His reports are Ex.P -16 and P -27. Seized articles were sent for examination to Forensic Science Laboratory, Indore and Sagar and their reports are Ex.P -24 and Ex.P -25. After obtaining sanction from District Magistrate for prosecution of Appellants under the provisions of Arms Act, the charge -sheet was filed by the police against the Appellants for the above mentioned offences.

(3.) WE have heard the learned Counsel for the parties and also perused the entire record carefully.