Om Prakash-VII, J.

These criminal appeals have been preferred by the accused/ appellants against the judgement and order dated 16.9.1995 passed by the VIII Additional District & Sessions Judge, Moradabad in Session Trial No.484/1994 (State vs. Moazzam and others) convicting and sentencing the appellants for the offences punishable under Section 302 read with Section 149 IPC for life imprisonment and for offence under Section 148 IPC for two years rigorous imprisonment. All the sentences have been directed to run concurrently.

2. Since these criminal appeals have been filed against the same judgement and order, and have been heard together, therefore, the same are being decided by this judgement.

3. At the very outset, it is very relevant to mention here that during pendency of Criminal Appeal No. 1598 of 1995, the appellant - Moazzam Ali has died. As per the report of the Chief Judicial Magistrate, Moradabad the accused/ appellant Moazzam Ali has been murdered. Accordingly, by the order dated 18.4.2014, this Court passed order directing abatement of Criminal Appeal No. 1598 of 1995 as against the appellant-Moazzam Ali in the said appeal.

4. Now, we are proceeding to consider the criminal appeals in respect of rest of the appellants i.e. Babban, Arshad, Mukarrab, Jahangir and Jamil.

5. The facts of the case are that on 22.3.1994 at about 18.30 hours a written report was lodged by one Athar Husain son of Iqbal Husain, resident of village Peepalsana, Police Station, Bhojpur, District - Moradabad at P.S. Bhojpur alleging that he was a resident of village Peepalsana, P.S. Bhojpur, District - Moradabad and on that very day i.e. 22.3.1994 Azeemul Haq, his brother-in-law, after purchasing grapes from the Thela of Bhoora son of Hamid Raza from the market of his village, was coming back to his house at about 5.30 p.m. Athar Husain (informant), Mamshad, Sabit Ali, Yasin, and Firoz Akhtar were also going a bit behind from Azeemul-Haq. The accused Jahangir son of Intezar, Jamil son of Aijaz Husain, Moazzam and Mukarrab sons of Mulla Zafar, Arsad son of Rashid, Babban son of Zaheer suddenly came on the road from the Prathama Bank house of Jahangir and started abusing Azeemul Haq and said that he was opposing his Mangal Bazar and he will not be spared. Azeemul Haq tried to run away but in the meantime Jamil fired upon him with Tamancha, consequently, Azeemul Haq fell-down after receiving the injury. Thereafter, Jahangir fired upon him in the temple. Moazzam and Mukarrab also fired with Tamanchas, Arshad and Babban assaulted him by knives. The informant and other persons rushed there alarming. The accused persons threatened them and ran away in the eastern side through the lane in front of the Bank. Azeemul Haq succumbed to his injuries on the spot. It was further alleged that the occurrence was witnessed by several persons. The dead body of Azeemul Haq was lying on the spot.

6. On the basis of the said written report (Ext. Ka-1), Chik - First Information Report (in short 'FIR') (Ext. Ka-2) was lodged on the same day at 18.30 hours at the concerned Police Station at Crime No. 80 of 1994 under Sections 147/148/149/302 IPC showing the distance from the place of occurrence to the Police Station as 1-1/2 kilometres. The Investigating Officer proceeded to place of occurrence and inquest report and other police papers (Ext. Ka-5 to Ext Ka-10) in respect of the deceased were prepared and dead body of the deceased, keeping the same in sealed cover and preparing the sample seal, was sent for post-mortem through Constable Virendra Kumar and Constable Bijendra Sharma. The Investigating Officer also took sample of simple earth and blood stained earth from the place of occurrence and kept it in a sealed container. The blood stained grapes found on the spot were also taken into custody and keeping them in polythene sealed in a container. Empty cartridges found on the spot were also taken into custody and were kept in sealed cover. Dr. A.K. Gupta ha