ARSHAD HUSSAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been preferred by the appellantsaccused against the judgment and order dated 18.5.2004 passed by the learned Sessions Judge, Udaipur in Sessions Case No.96/2001 by which the trial court convicted the appellant Arshad Hussain under Section 302 IPC and the appellant-accused Mujaffar @ Guddu and Shahjad Hussain under Section 302 read with Section 34 IPC. All the accused persons have been sentenced to undergo the sentence of life imprisonment with fine of Rs.10,000/- to each and in default of payment of fine, to further undergo one year's rigorous imprisonment.

(2.) As per the prosecution case, on 18.12.2000 at about 11.50 p.m., a written report (Ex.P.1) was submitted by complainant Nizam at General Hospital, Udaipur to the Sub-Inspector of Police Shri Nazir Khan. In said written report, it was alleged that on 18.12.2000 at about 10.00 p.m., the complainant Nizam along with Iqbal, Jamil and Moin were coming from the in-laws' house of Iqbal on two scooters. The complainant Nizam was driving one scooter and the deceased Iqbal was sitting behind him. Behind their scooter, on another scooter, Moin and Jamil were coming. Moin was driving the scooter and Jamil was sitting behind him. When they reached near the house of Ashfak, all of sudden, Shahjad and Mujaffar sons of Ashfak came in front of complainant and stopped them. Iqbal dropped down from the scooter and asked what is there ? Immediately, Shahjad and Mujaffar shouted "Arshad fire" . Arshad who was standing in the Baramda (doli) of his house with the gun, fired thrice. The complainant sat down and the pallets went into the chest and the shoulder of Iqbal who fell down on the spot. Jamil and Moin and the complainant all the three ran away from the spot. It is stated in the written report that there was old enmity between Ashfak and Iqbal and, therefore, by predetermination and with plan, Iqbal was killed and the complainant saw the gun in the hands of Arshad. Thereafter, the complainant Jamil and Moin with the help of Raja @ Siraj took the victim Iqbal to hospital and there he submitted a written report Ex.P.1 as the Sub-Inspector of Police Najir Khan reached there. On this written report,FIR No.523.2000 under Sections 341, 302 read with Section 34, IPC was registered by drawing FIR Ex.P.52.

(3.) During investigation, on next day at 8 a.m., the seizure memo(Ex.P.17) for the dead body was prepared and his clothes were taken into custody and in his pocket of shirt, one mobile of Samsung Company was found which was also seized and a seizure memo Ex.P.7 was prepared. The clothes-shirt, Baniyan and trousers of the deceased which were having blood stains were also seized and put in a sealed cover and the memo Ex.P.8 was prepared. The dead body was sent for postmortem vide tehrir Ex.P.5. The post-mortem report Ex.P.42 was obtained. The dead body was X-rayed and X-ray report is Ex.P.31. The Investigating Officer took the photographs of the spot which were exhibited in the trial court as Ex.P.3, Ex.P.6, Ex.P.14, Ex.P.15, Ex.P.24 to Ex.P.27. After post-mortem, the body of the deceased was handed over to cousin brother of deceased vide Ex.P.9. The site inspection report Ex.P.10 was drawn and blood soil and sample soil were also taken and were sealed in cover and a report Ex.P.11 was drawn. From the site, two empty cartridges of 12 bore gun and cartridges paper as well as plastic dats were taken into custody and they were put in a sealed cover and seizure memo Ex.P.12 was prepared,. The statements of the witnesses, Jamil, Nizam and Moin were recorded under Section 161, Cr.P.C. On 19.12.2000, whereas statement of Babu Khan was recorded on 20.12.2000 and the statement of Sajjad Khan was recorded on 21.12.2000. The statements of other witnesses were also recorded. On 21.12.2000, Nijamuddin voluntarily gave his Tshirt and pent which were having blood stains for which seizure memo Ex.P.13 and for the clothes of Moin, which was given by him to the police, seizure memo Ex.P.14 were drawn and in the same way, Jamil gave his clothes which were taken into custody vide Ex.P.16.