Akhtar Husain Khan, J.

1. Present appeal has been filed by accused appellants Gazuddin, Kalua and Shera under Section 374( 2) Cr.P.C. against judgment and order dated 22.4.1993 passed by learned IX Additional Sessions Judge, Ghaziabad in S.T. No. 148 of 1991 ( State Vs. Gazuddin and others), under Section 302 /34 and 323 I.P.C., Police Station Sahibabad, District Ghaziabad, whereby learned IX Additional Sessions Judge, Ghaziabad has convicted accused appellants Gazuddin, Kalua and Shera for offence punishable under section 302 read with section 34 I.P.C. and sentenced each of them thereunder to imprisonment for life. Learned IX Additional Sessions Judge, Ghaziabad has further convicted accused appellant Gazuddin for offence punishable under section 323 I.P.C. and sentenced him thereunder to rigorous imprisonment for six months. Learned IX Additional Sessions Judge, Ghaziabad has directed that both sentences of accused appellant Gazuddin shall run concurrently.

2. Accused appellants Gazuddin and Kalua are reported dead. Appeal abated in respect of accused appellants Gazuddin and Kalua.

3. Shri P.K. Tripathi learned counsel appeared for the accused appellants and Shri Basharat Ali Khan, learned A.G.A. assisted by Shri Hari Krishan Mishra appeared for State respondent.

4. We have heard the parties and perused the record.

5. According to the first information report Exhibit Ka. 12 in brief prosecution case is that accused Kalua borrowed Rs. 500/- from Jumma brother of complainant Ahmad Saed and lost the same in gambling. On the date of occurrence i.e. 11.2.1991 at about 6.45 P.M. Jumma demanded back his money from accused Kalua that caused accused Kalua aggravated. He began to abuse Jumma and refused to pay back money. Jumma brother of complainant Ahmad Saed forbade abusing whereupon altercation took place between them. Having heard the noise Shamim son of Abdul Hamid, Yaseen son of Kalla Mehar and Mohd. Sharif son of Sahab Uddin as well as several other persons of locality came to the place of occurrence and tried to pacify them. In the meantime accused Shera brother of accused Kalua and accused Gazuddin father of accused Kalua came there and exhortation. Thereafter accused Gazuddin assaulted Jumma with danda and accused Kalua and Shera having drawn knives from their phet ( waist) assaulted him with knifes. Mother Sahida and sister Jumiya of complainant came to rescue Jumma. They also suffered injuries by the blows of danda given by accused Gazuddin. After having received injuries Jumma fell down. When witnesses and persons of locality challenged the aforesaid accused runaway. Thereafter with aid of residents of his mohalla complainant Ahmad Saed carried injured Jumma by horse cart to Tej Bahadur Hospital, Delhi where doctor declared Jumma dead. Thereafter they were returning back with dead body of Jumma. In the way they felt Jumma to be alive. Thereafter they carried him with the same horse cart to Mohan Nagar Hospital. There also doctor confirmed that Jumma is dead. Then leaving dead body of Jumma in Mohan Nagar Hospital complainant Ahmad Saed went to Police Station Sahibabad, and presented written report Exhibit Ka. 12 whereupon Crime No. 61 of 1991, under sections 302/323 I.P.C. was registered in Police Station Sahibabad, District Ghaziabad against accused appellants Gazuddin, Kalua and Shera on 12.2.1991 at 00.20 A.M. Investigation was started by police and inquest report of deceased Jumma was prepared by police. Thereafter dead-body of deceased Jumma was sent for postmortem in sealed cover after having completed necessary formalities. Later on investigation was completed by police in accordance with law.

6. After having completed investigation, police submitted charge sheet against accused appellants Gazuddin, Kalua and Shera under sections 302/323 I.P.C. whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Session for trial. Thereafter Session Trial No. 148

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