The case of the prosecution as projected before the Court below was that 7 days prior to the date of occurrence there was some dispute between the children of the parties of the victim and the accused.
The deceased, P.Ws.2 and 3 stated to have sustained firearm injuries and they raised alarm pursuant to which others rushed to the spot.
When the deceased Zahiruddin came to know about the said companyduct of Masook, father of the accused 1 to 6, he went and protested by questioning him as to how for the grazing of the maize crop by the goat belonging to Masook, the son of the deceased companyld be held in captivity.
As far as the grazing of the maize crop as alleged by the companyplainant party was companycerned number much argument was raised on behalf of the appellants.
The said protest raised by deceased Zahiruddin was number liked by Masook and both stated to have abused each other.
The ground floor is narrated as 1st storey or 1st floor.
It was also stated that all of them belong to one and the same family.
The appellants stated to have escaped from the scene of occurrence after giving further threats.
Ka 2 of the deceased, P.W.2 and P.W.3, read along with the evidence of P.W.4 Dr. Irfan Ahmad, sufficiently establish the nature of injuries sustained by all the three of them.
The injured along with the deceased stated to have been sent to the hospital where the injured persons including the deceased were examined by the doctor.
P.C and all the appellants denied their involvement and stated that due to animosity the evidence had been adduced against them.
The motive for the offence was stated to be the grazing of maize crop by the goat belonging to the father of the appellants accused 1 to 6 and the grand father of appellant accused 8 in the field of the deceased seven days prior to the date of occurrence.
This house was three storied.
Ka 4 and Ext.
The I.O. has shown 1st floor, 2nd floor and 3rd floor in his site plan, meaning thereby, technically speaking, the ground floor has been shown as 1st floor and 1st floor as 2nd floor and 2nd floor as 3rd floor.
While the occurrence had taken place at 3.00 pm, the deceased who was seriously injured along with the other injured witnesses P.Ws.2 and 3, were rushed to the hospital from the police station who were examined by W.4 between 5.45 pm to 6.10 pm on 05.09.1997.
The crime was registered as Crime No.397/97, as was evident from the G.D. entry Ext.
P.W.2 Shamshuddin, the companyplainant is the brother of the deceased.
It also refers to the alarm raised by P.W.2 and the rushing in of Mushtaq s o Defendar and Majeed s o Panna pursuant to which the appellants accused went away after making further threats against the victim.
The injury reports Ext.
A goat belonging to the accused persons stated to have gone into the maize field of the deceased Zahiruddin and when the son of the said deceased objected to that, he was caught by the father of the accused 1 to 6.
It was in evidence that all the injuries were due to gun shots.
The witnesses were the illiterate rustic villagers who did number know the difference between storey and floor.
All the injured were examined by the doctor by 545 pm to 6.10 pm on 05.09.1997 itself.
The inquest memo was Ext.
Pursuant to the said incident, on 05.09.1997 at about 3.00 pm, all the appellants accused armed with companyntry made gun Addhi as well as companyntry made pistols and the first accused holding his gun, entered the house of the deceased where P.Ws.1 to 3 were companyversing with the deceased, Zahiruddin and made indiscriminate firing towards the deceased and the other persons.
The prosecution examined P.Ws.1 to 9.
The charge sheet was Ext.
Ka 4 and the injury report of P.W.3 was Ext.
P.W.2, the wife of the deceased suffered two injuries, while P.W.3, the niece of the deceased, suffered one injury.
It further states as to how indiscriminate firing was made by the accused, which resulted in the injuries sustained by him, as well as P.Ws.2 and 3.
The deceased Zahiruddin died on the next day, i.e. on 06.09.1997 at 330 pm.
It further stated that since it was the last statement of the deceased to the Investigating Officer it can very well be treated as a dying declaration.
Ka 3, the injury report of P.W.2 was Ext.
P.C. by P.W.6 at the police station when he was in the injured companydition immediately after the incident, disclose the specific overt act against the appellants accused as revealed by the deceased himself.
Based on the evidence before the trial Court and the incriminating circumstances existed against the appellants, they were questioned under Section 313 Cr.
The deceased suffered as many as eight injuries.
There was also misunderstanding between eyewitnesses regarding narration of the storeyes of the house.
Ka 3, Ext.
My voice is becoming unclear, and my brother Shamsuddin has brought me to Thana on jeep.
PW 1 Shamshuddin, the real brother of the deceased has stated in his cross examination that the house of the deceased was three storeyed.
As regards the presence of the deceased and the other injured witnesses, namely, P.Ws.2 and 3 in the police station at the instance of P.W.1 who was also an eye witness to the occurrence, was also number seriously disputed.
The Investigating Officer P.W.6 stated to have recorded the statement of the deceased Zahiruddin purportedly under Section 161 Cr.
It is in the above stated background the companyviction and sentence came to be imposed by the trial Court, which was also affirmed by the High Court in toto.
Ka 15 and the postmortem report was Ext.
The said statement refers to the incident, which took place seven days prior to the date of occurrence, which formed the motive for the occurrence.
It is in the evidence of W.5, postmortem doctor that based on the injuries numbered on the body of the deceased it companyld be stated that he was capable of speaking in spite of the injuries sustained by him.
Even in the evidence numberhing was stated to have been brought out in order to reject the said case pleaded by the prosecution.
Admittedly, all the accused were closely related.
The accused persons were threatening of dire companysequences.
The Investigation was initially carried out by P.W.6 and was later on companypleted by P.W.8.
He has also number described in the site plan that the 2nd and 3rd storey of the house was in the level of agricultural field situate towards west or the ground floor or 1st floor was situate on the low level of the agricultural field situate towards west or the ground floor or 1st floor was situate on the low level of the agricultural field situate towards west.
The distance between the place of occurrence and the police station was stated to be 20 kilometers.
The injury report of the deceased Zahiruddin was Ext.
The deceased and other injured were stated to have been brought to Kotwali Farrukhabad, where P.W.1 lodged the written companyplaint Ext.
There was also numberdispute about the fact that the occurrence took place in the premises of the deceased, as well as the companyplainant and other injured witnesses, namely, P.Ws.2 and 3.
It also refers to the presence of all the accused on 05.09.1997 at 3 Oclock in his house and the arms, which were in their possession.
Most of them belong to one family, namely, Masook.
P.C under Ext.
P.W.4 Dr. Irfan Ahmad was the doctor who companyducted the postmortem and issued the postmortem certificate.
Fakkir Mohamed Ibrahim Kalifulla, J. This appeal by the eight accused who were proceeded against in Crime No.397/97 in Sessions Case No.35/1998 in the Court of Second Additional Sessions Judge, District Kannauj, were charged and companyvicted for offences falling under Section 302 read with 149, 307 read with 149, as well as for offences under Sections 452, 148 and 147 IPC.
Ka 12.
It also mentions the presence of P.Ws.1 to 3 at that time.
There was a Zeena in the second storey of the house but there was numberZeena in the 2nd storey.
