IMPORTANT POINTS
When eye witnesses establish the case, motive becomes unimportant.
Minor contradictions are not fatal to prosecution case.
When 7-8 persons form a group with a common intention of killing deceased, section 149 applies notwithstanding acquittal of some of the accused.
Court can suo motu consider the case of an accused even if he has not filed appeal against his conviction.

JUDGMENT :

M.R. Shah, J.

1. The present appeals before this Court arise against the impugned common judgment and order dated 22.08.2012 passed by the High Court of Uttarakhand at Nainital passed in Criminal Appeal Nos. 235/2004, 239/2004 and 261/2004 by which the High Court has dismissed the said appeals preferred by the original Accused Nos.1, 2 and 5 and has confirmed the conviction and sentence imposed by the learned trial Court convicting them for the offences under Sections 302/149 and 147 of the IPC.

1.1 That, in all, eight accused were tried for the offences under Sections 147, 148 and 302/149 of the IPC for having committed murder of one Mukhtar Ahmed. That, out of the eight accused, three accused namely, Raees Ahmed (A4), Mohd. Ashraf (A2) and Raees Ahmed @ Satna (A5) were also tried for the offence under Section 25 of the Arms Act. That, during the trial, accused Mohd. Aslam (A3) died and, therefore, the case of the said accused was ordered to be abated. That, on conclusion of the trial, the learned Additional Sessions Judge, Fast Track Court, Kashipur, District Udham Singh Nagar (hereinafter referred to as “the trial Court”) held all the accused guilty for the offences under Sections 302/149 of the IPC and sentenced them to undergo life imprisonment and a fine of Rs.2,000/- each and, in case of default in paying the fine, to undergo one year RI. The learned trial Court also convicted the original Accused No.1 Smt. Farida Begum, original Accused No.6 Mohd. Nasim @ Churti and original Accused No.7 Idrish for the offence under Section 147 of the IPC and sentenced them to undergo one year RI. The learned trial Court also convicted the original Accused No.2 Mohd. Ashraf, original Accused No.4 Raees Ahmed and the original Accused No.5 Raees Ahmed @ Satna for the offences under Section 148 of the IPC and sentenced them to undergo two years RI. That the learned trial Court acquitted the original Accused Nos.2, 4 and 5 for the offence under Section 25 of the Arms Act.

1.2 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence imposed by the learned trial Court, the original Accused No.1 Smt. Farida Begum preferred Criminal Appeal No.235 of 2004 before the High Court. The original Accused No.2 Mohd. Ashraf preferred Criminal Appeal No.239 of 2004 and original Accused No.5 Raees Ahmed @ Satna preferred Criminal Appeal No.261 of 2004 before the High Court. The original Accused No.7 Idrish preferred Criminal Appeal No.238 of 2004, Mohd. Nasim @ Churti original Accused No. 6 preferred Criminal Appeal No.240 of 2004 and Raees Ahmed original Accused No.4 preferred Criminal Appeal No.251 of 2004 before the High Court, challenging their respective conviction and sentence imposed by the learned trial Court. That, by the common impugned judgment and order, the High Court has dismissed the appeals preferred by the original Accused Nos.1,2,4 and 5 and has confirmed their conviction. The High Court, however, has allowed the appeals preferred by the original Accused Nos.6 and 7, i.e. Criminal Appeal Nos.238 of 2004 and 240 of 2004 and has acquitted them by giving them the benefit of doubt.

1.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original Accused Nos.1,2 and 5 have preferred the present Criminal Appeals being Criminal Appeal Nos.1560/2013, 1652/2013 and 1653/2013 respectively. At this stage, it is required to be noted that so far as the original Accused No.4 Raees Ahmed is concerned, he has not preferred any appeal, however, his case shall be dealt with hereinbelow.

2. The case of the prosecution in nutshell is as under:

That FIR was lodged on 01.07.1999 at about 9.15 PM at Police Station, Jaspur, Udham Singh Nagar by one Shahid Hussain against the accused persons for the offences under Section 302/149, 147, 148 of IPC and Section 25 of the Arm