Point of Law: Criminal Law – Criminal Trial – Unlawful assembly and Murder – Injuries/Wounds/Weapons - Appeal against conviction - Ocular version stands corroborated by the medical evidence. The accused had come armed with deadly weapons and in prosecution of the common object murdered Yusuf Khan. They succeeded in executing their plan successfully. They were rightly found guilty of offences under Section 148, 302 IPC (read with Section 149 IPC) - There is no mitigating circumstance or evidence for taking a different view on the quantum of punishment.

JUDGMENT :

Manoj Kumar Gupta, J.

The instant appeal has been preferred against the judgment and order dated 21.11.1983 passed by the Special Judge, Dacoity Affected Areas, Etah, in S.T. No. 411 of 1982 (leading case), connected with S.T. No.416 of 1982, convicting the appellants under Section 148/302/149 IPC and sentencing them to rigorous imprisonment of two years and life imprisonment and fine of Rs. 1000/- each, with default clause.

The prosecution case is that the deceased victim Mohammad Yusuf Khan, brother of the first informant Moosa Khan, was sleeping on the chabutra of his house in village Samaspur in the night of 8/9 July 1982 alongwith other relatives and family members. His cot was on the eastern side of the chabutra, a raised platform 2 – 2½ feet high. His brother Moosa Khan (PW1), uncle Usman Khan (PW2) son of Mohammad Ismail Khan, Abdul Rauf Khan son of Attaullah Khan and son Ishrat Yaar Khan (PW3), were sleeping on his side. At about 2 A.M. in the night, Nawab son of Ayub, Moosa son of Ayub, Kallu son of Naviullah, Kudush son of Yasmeen and Mushir son of Bashir Khan, all residents of village Samsapur came armed with rifles and guns. Nawab exhorted Moosa to fire saying that “maar saale ko bahut bada neta banta hain” and upon which Moosa using his tamancha (pistol) and Kudush using his gun fired at Yusuf hitting him on the left and back side. On shouting of the first informant, Mosina son of Yakub Khan and Nannoo Khan son of Mehmood Khan and other persons came running. They saw all the five accused with their arms in moon light and torch light. Since it was month of Ramzan, a lighted lantern was also hanging from the wall of Masjid on the northern side of the chabutara. They chased the accused but they managed to escape under cover of gunfire. They carried the injured Mohammad Yusuf to the police station but on way, he died. The body was taken to the police station and a FIR was got registered by the brother Moosa Khan (PW1) at Police Station Ganjdundwara, District Etah on 9.7.1982 at 2:55 A.M.

The postmortem of the dead body was carried out by Dr. P.K. Jain (PW 6) on 9.7.1982 at 1 P.M. The following anti-mortem injuries were found on the body:

1. Multiple firearm wounds of entry each 1/4 cm x 1/4 cm x cavity deep on the right back of chest in an area of 15 cm x 12 cm, 4 cm away from midline.

2. Firearm wound of entry 1.5 cm x 1.5 cm x through and through on the left anterior axillary line 10 cm above left anterior superior iliac Spine.

3. Firearm wound of exit 3 cm x 3 cm on the left posterior axillary line, 15 cm above the iliac crest.

4. Firearm wound of entry 1½ cm x 1½ cm x cavity deep on the right mid axillary line, 15 cm above the right iliac crest.

5. Abraded contusion 5 cm x 1 cm on the front of right leg 2 cm below the knee.

There was no blackening around wound nos. 1, 2 and 4.

On internal examination he found blood present in the tissues below injury no. 1. The right scapula was found fractured, both the pleura were found lacerated and there was about 40 oz. of clotted and liquid blood in the cavity. There were 42 pellets and one yellowish metallic piece recovered from the right and the left side of the cavity. There was some blood also underneath the muscles of injuries nos. 2 and 4. Peritoneum was grossly lacerated and there was about 20 oz. of blood in the cavity of the stomach. The stomach and the small intestines were found empty but the large intestine was full of faecal matter. According to the doctor, death was due to shock and haemorrhage as a result of antemortem injuries and these injuries were sufficient in the ordinary course of nature to cause death. The doctor was examined as PW6 (Dr. P.K. Jain) and he proved the postmortem report (Ext.Ka-16).

Inquest on the dead body was held at 5 A.M. the same day. The Investigating Officer recorded the statement of witnesses and thereafter reached the spot and inspected it. The site plan prepared by him is Ext.Ka-8. He collected blood-stained and ordinary earth f