Honble SHARMA, J.–Javed Masood and Syed Najib Hasan, appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) Tonk, who vide judgment dated July 25, 2003, convicted and sentenced them as under:-

U/s.302 IPC:

Both to undergo imprisonment for life and fine of Rs.100/- in default to further suffer three months simple imprisonment.

U/s.201 IPC:

Both to undergo three years rigorous imprisonment and fine of Rs.100/- in default to further suffer three months simple imprisonment.

U/s.148 IPC:

Both to undergo three years rigorous imprisonment and fine of Rs.100/- in default to further suffer three months simple imprisonment.

The substantive sentences were ordered to run concurrently.

Facts and Rival Submissions :

(2). Put briefly the prosecution case is that on May 25, 1999 at 1 PM Sub Inspector of Police Station Kotwali Tonk recorded Parcha Bayan (Ex.P- 12) of Chuttu @ Nizamuddin (P.W.5) wherein he stated that on the said day around 12.15 to 12.30 AM he in the company of Saleem and Noor, was getting his truck repaired at Rajasthan Tyrewala near Roadways Depot Tonk. At that time Mohammad Deen @ Mulla came at the shop of Ayub Bhai, suddenly 10-12 persons equipped with arms came over there and surrounded Mohammad Deen @ Mulla. Out of those persons Javed, Khalid, Nazeeb, Ashraf and Aziz were armed with Gupties, Mehmood, Iqbal, Nasir, Matin, Rashidullah were equipped with swords and knives. Gullo @ Arif, Saddique and some other unknown persons had Gandasa. Javed Masood inflicted blow with Gupti on the chest of Mohammad Deen @ Mulla. Khalid, Nazib, Ashraf and Aziz inflicted blows on neck, face and back. Ashraf also gave a blow on the temporal region and Mehmood, Iqbal, Nasir, Matin, Rashidulla gave blows on other parts of the body. Gullo & Saddique gave blows with sword on back and hands of Mullaji. Believing Mullaji to be dead the assailants fled away. Meanwhile police vehicle reached to the spot and removed Mullaji to hospital where he was declared as dead. On that parcha bayan case under Sections 302, 324, 326, 147, 148 and 149 IPC was registered and investigation commenced. Statements of witnesses were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under Sections 148, 302, 323, 324, 326/149 and 201 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 33 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. It was stated that on July 25, 1998 Chhuttu, Noor, Salim, Raees assaulted them and FIR was registered as 219/1998 and charge sheet was filed against them. In that case Nazeed Hasan was a witness. Therefore Chhotu, real brother of deceased, falsely implicated the appellants in the instant case. Three witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.

(3). We have heard learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record.

(4). The death of Mohammaddin @ Mulla was undeniably homicidal in nature. As per post mortem report (Ex.P-43) following ante mortem injuries were found on the dead body:-

"1. Incised wound 1" x 1/2" sub cut deep right parietal posterior part, elliptical

2. Incised wound 1" x 1/2" phanyngeal cavity deep elliptical vertical bleeding + Rt. carotid region ant. to ear lobule.

3. Incised wound 1/2" x 1/4" muscle deep on Rt. parotid region anterior to injury No.2 vertical elliptical.

4. Contusion 3" x 2" lt. forehead above lt. eye brow with black eye.

5. Incised wound 1" x 1/8" sub cut elliptical 11/2" lateral to eye on face right vertical.

6. Incised wound elliptical 11/2" x 1/2" muscle deep on upper 1/3rd f

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