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TMI Blog2007 (12) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... id First Information Report, it was alleged that when at about 1.00 a.m. on the previous night the deceased and injured were thrashing bazra, they were attacked by 12 persons, namely, Mohd. Ishaq, Sahid, Abdul Salam, Umar Mohd., Narangi, Liyakat Ali, Gernal, Jamalu, Alladdin, Rustam, Jamil, Mewan and Bilag. It was furthermore alleged that Sahid and Gernal were carrying 12 Bore guns, Mohd. Ishaq Abdul and the rest of the accused were having lathis. 4. On exhortation given by Mohd. Ishaq ordering to shoot down Jharmal and his two brothers, Sahid and Gernal allegedly fired shots from their guns. 5. The informant ran away from the said place and climbed on a nearby hill. He cried for help. Jharmal and Mubin also cried for help. They ran towards a well situated nearby. Accused killed Jharmal and Juhru by hitting them on their heads with lathis and Tachia (a weapon like Farsa). Mubin was also assaulted on his head and other parts of the body. Presuming all the three brothers to be dead the accused ran away. Allegedly the wooden portion of the gun of Sahid fell down at the place of occurrence. 6. The motive for commission of the said offence is said to be that Majid had some dispute in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng not been recovered, the prosecution story should not be relied upon. The theory of criminal conspiracy having been discarded, it was urged, it would not be safe to uphold the judgment of conviction and sentence as against the appellants. 14. Mr. Ranbir Singh Yadav, learned Counsel appearing on behalf of the appellant, Jamallu and others, also contended that the case of Jamallu being on the same footing as that of Daud Khan and the High Court having acquitted Daud Khan, there is absolutely no reason as to why Jamallu would not be similarly treated. 15. Mr. Navin Kumar Singh, learned Counsel appearing on behalf of the respondent, however, supported the impugned judgment. 16. The incident, as noticed hereinbefore, took place at the dead of night. Two persons died and one was injured in the incident. The first informant went to Bhullu, PW-6, for getting the report written down. He immediately proceeded to the police station and got the FIR lodged. Twelve persons were named in the FIR. 17. Bhullu, PW-6, however, at a later stage disclosed that all the accused persons entered into a conspiracy for committing the murder. On the basis of the said statement, in all, eighteen persons were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 2 xx1/4 x bone deep over left parietal area in front of injury No. 7. 8. Lacerated wound 4,1/4 x1/4 x Bone deep over Rt. Side of upper part of forehead, transversely. 9. Irregular lacerated wound 2 x1/4 x bone deep just left eye brown, transversely. 10. Incised wound, slanting downwards, 3, 1/2 , = x bone deep over face transversely from left ear to angle of lt. eye Left maxilla is fractured. 11. Incised wound 1 x 1/4 whole thickness of lt. angle of mouth. 12. Lacerated wound 1 x1/4 x1/4 behind left ear. 13. Gunshot wounds, two in number, over back of trunk, 9 apart, one just outside of angle of Lt. Scapula, another in the midline at L 2- 3 spine level, each about 4mm x 4mm in size with charred margins and base involving only partial thickness of skin No. pallet is seen or felt in either of the wounds nor any pallet recovered on dissecting the wounds. Underlying tissues are healthy. 14. Incised wound 1 x1/4 x1/4 over back of upper third of 1t. thigh. 15. Incised wound 1 x1/4 x1/4 over back of upper third of left 1 below injury No. 14. 16. Incised wound 1 x1/4 x1/4 over back of middle third of left thigh. 17. Bruise 4 x1 over front of upper third of left arm. 22. Mubin (PW.1) als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Fuel, who was involved in a murder case, started living with the brother of PW-1. Appellant themselves suggested in cross-examination of the prosecution witnesses that there had been dispute between the family of Fuel and the family of the accused persons qua Rehmati. 28. It will bear repetition to state that PW-1 was an injured witness. He narrated the whole incident and described the manner in which it took place in some details. He was assaulted by lathis. He, although became unconscious, had sufficient time to notice the assaults caused by some of the appellants on Jharmal and Juhru. He had also disclosed the motive for commission of the said offence by the appellants. 29. PW-4 Kannu was the first informant. He, of course, in his statement before the police as also before the Court implicated a few persons who had not been named in the FIR but the same by itself cannot be a ground to discredit his testimony in its entirety. In his evidence, he gave in details the manner in which death was caused to Jharmal and Juhru and injuries to Mubin. PW-8 was Deena. According to this witness, he, at the time of occurrence, did not see Liyakat and Jamallu. We have noticed hereinbefore tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed not be encyclopedic. It was a fact. It was found to be correct. 33. The defence had examined six witnesses. DW-1 Hussaina, DW-2 Ihsav, DW-3 Kallu, DW-4 Hafiz Mohd., and DW-5 Alladin, in their depositions alleged that some unknown persons had committed murder of Jharmal and Juhru and caused injuries on the person of Mubin. DW-6, who was a part of the investigating team, alleged that during his investigation it was found that Mohd. Ishaq, Daud and Salam did not commit the offence. Both the courts had categorically held that the testimonies of DW-1 to DW- 5 were not reliable. They were not examined by the police. Their statements had not been recorded under Section 161 Code of Criminal Procedure. They never volunteered to give their statement. No suggestion has been thrown to the prosecution witnesses that they were present at the time of occurrence or they had the occasion to acquire any authentic knowledge in regard to the incident. So far as the statement of DW-6 is concerned, it was based on his opinion. Ishaq has died. Daud has already been acquitted by the High Court. 34. We also do not find any force in the submission of the learned Counsel that the weapons of offences were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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