Akhtar & Ors vs State Of Uttaranchal

2. The prosecution story, in brief, is that on 13.05.1987, at about 10.00 AM, complainant Jamil Ahmad (PW-2) along with his brothers Asgar and Shakil (both deceased), and nephew Mobin (PW-3), were ploughing their field, bearing Khasra No. 967, situated in Village Beljuri within the limits of Police Station, Kashipur. Their tractor was being driven by driver Radhey Shyam (PW-4). They were in litigation over possession of said field with accused-Alla Bux and others. Stay order had also been obtained by them regarding the same. It is alleged that on account of such running feud between them, Alla Bux and his associates were inimical to the complainant (Jamil Ahmad) and his brothers and that on aforesaid date and time when the plot was being ploughed, accused - Alla Bux, Akhtar, Mohd. Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir Bux, armed with deadly weapons - pistol, tabals (a sharp edged weapon), knives and lathies, reached in the field. Accused Alla Bux exhorted his companions whereupon all the accused/appellants started giving blows with the weapons they were armed with, on the complainant, his brothers and nephew. The accused/appellant Akhtar, who wielded a country made pistol, fired upon them and wounded Shakil (one of the deceased) and Mobin (one of the injured). In the incident all of Page 2 of 14 them, namely Asgar, Shakil, Jamil Ahmad and Mobin sustained severe injuries. On account of the injuries thus sustained Asgar and Shakil died on the spot itself. Asgar (another deceased) and Jamil Ahmad (another injured) also received injuries of sharp edged weapons. On raising alarm by Jamil Ahmad and others, many other persons from nearby place reached at the spot whereupon accused/appellant ran away towards river Dhela.

3. Leaving the dead bodies of Asgar and Shakil at the spot, Jamil Ahmad along with Mobin went to Kashipur. The written First Information Report (in short "the FIR") was got scribed by one Anwar Hussain on dictation of Jamil Ahmad (PW-2). Jamil Ahmad then went to Police Station, Kashipur and lodged the said FIR with the police. The police registered the FIR being Crime No. 160 of 1987 on 13.5.1987, at about 11.20 AM against all the eight accused persons relating to offences punishable under Sections 147, 148, 149, 307 and 302 IPC and thereafter started investigation. Shri R.S. Lal Sharma, Sub-Inspector (PW-9) was entrusted with the investigation in the matter. He accompanied by Kalyan Singh (PW-7), another Sub- Inspector, reached the spot. The dead bodies were taken by the police into their custody. The dead bodies were sealed and sent for post Page 3 of 14 mortem examination. The police prepared inquest reports, Police Form No. 13, sketch of the dead bodies, sketch map of the spot and the letters requesting the Medical Superintendent, for post mortem examination of the dead bodies. Police also collected the unstained soil and blood stained soil from the place of incident along with empty shells of cartridges as well as live cartridges and duly sealed the same on the spot and prepared memorandums. Meanwhile, on the same day, i.e. on 13.5.1987 injuries on the person of Jamil Ahmad (PW-2) and Mobin (PW-3), were got examined in L.D. Bhatta Civil Hospital, Kashipur, at about 12.00 noon and their injury reports were prepared by Medical Officer on duty. Post mortem examination on the dead bodies of Asgar and Shakil was conducted on the next day i.e. 14.05.1987 at 10.00 AM and 10.30 AM respectively by Dr. D.K. Lumba, who prepared the post mortem examination reports.

4. During investigation, the witnesses were interrogated and all the accused were arrested. From the possession of accused/appellant Akhtar, a pistol, used in the crime, was recovered. The said country made pistol along with empty shells of cartridges, recovered from the spot itself by the police, were sent to Ballistic Expert, who gave its report supporting the prosecution case. On completion of Page 4 of 14 investigation the police submitted charge sheet on 30.05.1987 against all the eight accused/appellants, namely, Akhtar, Mohd. Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir Bux and Alla Bux.

5. The Addl. Chief Judicial Magistrate, Kashipur took cognizance of the case and committed the case to the court of Sessions, Nainital. The learned Sessions Judge, Nainital after hearing the prosecution and the defence, framed charges on 3.5.1988. Whereas the accused-Akhtar was charged with offences under Sections 148, 302, 307 and 324 read with Section 149 IPC, the co-accused Mohd. Umar, Nuru, Rais alias Gabru, Yamin and Yasin were charged with offences under Sections 148, 302/149, 307/149 and 324/149 IPC. The co-accused Amir Bux and Alla Bux were, however, charged with offences under Sections 147, 302/149, 307/149 and 324/149 IPC.

6. The trial court by its order dated 20.06.1989 held that the charges framed against the accused were not proved beyond reasonable doubt and consequently acquitted them of all the charges framed against them. Aggrieved by this order the State filed an appeal before Allahabad High Court on 29.09.1989 in which leave was granted under Section 378 (3) of the Code of Criminal Procedure, 1973 (in Page 5 of 14 short "the CrPC") on 21.05.1992. However, the said appeal came to be transferred for its disposal to the High Court of Uttaranchal at Nainital under Section 35 of U.P. Reorganization Act, 2000. It is also to be mentioned at this stage that accused Akhtar, Yasin and Alla Bux died during the pendency of the appeal in the High Court and, therefore, the said appeal stood abated so far those three accused were concerned. The High Court of Uttaranchal allowed the appeal preferred by the State and set aside the judgment and order of the trial court dated 23.06.1989 and ordered for conviction of all the surviving five accused. Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin was convicted under Sections 148, 302 r/w 149, 324 r/w 149 IPC. Considering relevant factors on the question of sentence, Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin was given rigorous imprisonment for a period of one year u/s 148 IPC; imprisonment for life u/s 302 r/w 149 IPC; rigorous imprisonment for a period of five years u/s 307 r/w 149 IPC; and rigorous imprisonment for a period of one year u/s 324 r/w 149 IPC. The appeal against accused Akhtar, Yasin, Allah Bux abated due to their death during the pendency of the appeal in the High Court. Page 6 of 14

19. In view of the aforesaid discussion, we do not find any infirmity in the judgment and order passed by the High Court. Accordingly, the appeal filed by the appellants herein is dismissed. The High Court Page 13 of 14 decision against each accused i.e. Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin convicted under Sections 148, 302/149, 307/149 and Section 324/149 IPC and sentenced to rigorous imprisonment for a period of one year under Section 148 IPC, imprisonment for life under Section 302/149 IPC, rigorous imprisonment for a period of five years under Section 307/149 IPC and rigorous imprisonment for a period of one year under Section 324/149 IPC, are hereby upheld. The sentences awarded to them shall run concurrently.