JUDGEMENT
G.P.Mathur, J. -
(1.)Mohd. Islam alias Aslam has filed the present appeal from Jail against the judgment and order dated 19-9-1990 of VIII Addl. Sessions Judge, Varanasi in Sessions Trial No. 182 of 1989 and Sessions Trial No. 267 of 1989 whereby he has been convicted under Section 302, IPC and has been sentenced to death in the former sessions trial and under Section 25/27 of the Arms Act for which he has been sentenced to 1 year's R.I. in the latter sessions trial. The Addl. Sessions Judge has also made the reference to this Court for confirmation of sentence of death awarded to the appellant.
(2.)The case of the prosecution is as under: The complainant Mohd. Ahmad resided in mohallah Sheshmani Bazar in the city of Varanasi and was engaged in the business of weaving Sarees. Tahira Bibi is his daughter while the deceased Smt. Jamila bibi was the wife of his brother Hazi Abdul Rasheed. Suhail Ahmad, deceased was son of Smt. Jamila, aforesaid, Mohd. Juber is another brother of the complainant and was residing in the same house. Appellant Mohd. Islam alias Aslam is resident of village Bidhana police station Sabor district Bhagalpur, Bihar, and he was working as servant at the complainant's place for about two years prior to the occurrence. He used to reside in the complainant's house and used to take his food there. About 1 1/2-2 months prior to the occurrence Tahira Bibi was kidnapped by the appellant and was taken to his village in Bhagalpur. Two days thereafter complainant went to the village of the appellant Mohd. Islam where it was learnt that he along with Tahira Bibi had gone to Bhagalpur Court. The complainant then went to Bhagalpur Court where he found Tahira Bibi sitting on a "Takht" along with another girl. Seeing her father Tahira Bibi immediately embraced him and started weeping. Mohd. Islam who was at some distance slipped away after seeing the complainant. Thereafter the complainant brought Tahira Bibi to Varanasi on a jeep. At about 5.30 p.m. on 2-2-1989 the complainant was in the verandah of the second floor of the house, while Tahira Bibi, Jamila Bibi and Suhail Ahmad were on the first floor. Tahira Bibi and Jamila were preparing food and Suhail Ahmad was sitting near by. The appellant Mohd. Islam, carrying a country made pistol in his right hand, came on the first floor of the house shouting that he would take Tahira Bibi with him on that day and no body can stop him. He rushed towards Tahira Bibi who ran towards a kothari (room) which is towards southern side. Mohd. Islam also tried to enter the kothari when he was asked not to do so by Jamila Bibi and Suhail Ahmad. Jamila Bibi caught hold of the left hand of Mohd. Islam. Mohd. Islam freed his left hand from the grip of Jamila Bibi and fired upon her head from the pistol. Tahira Bibi ran downstairs raising an alarm. Meanwhile Suhail Ahmad bent towards his mother. The appellant then fired second time from his pistol which hit Suhail Ahmad on his temple and he fell down. The complainant who was seeing the occurrence from the second floor was raising alarm and Tahira Bibi was also raising alarm after getting down. The appellant then entered the kothari and fired from his pistol twice. The complainant got down from the second floor to the first floor, meant while Mohd. Islam also came out of the kothari and held out a threat what he should get away otherwise he too would be killed. Meanwhile many people of the mohallah and some police men also arrived at the first floor. The police personnel took out their fire arms and challenged the appellant who was thereafter caught along with the pistol. Jamila Bibi and Suhail Ahmad died and their bodies were lying inside the kothari. The complainant then dictated a first information report of the incident to Maqbool Hasan and lodged the same at 6.30 p.m. on 2-2-89 at police station Jaitpura on the basis of which a case was registered as crime No. 23 of 1989 under Section 302, IPC. A second first information report was lodged by Ram Kripal Singh. Sub-Inspector, at 6.50 p.m. on the same day under Sections 25 and 27 of the Arms Act, on the basis of which a case was registered as crime No. 24 of 1989 at the same police station which is at a distance of 2 kilo meters from the place of occurrence. After the F.I.R. had been lodged Hari Raj Singh, in charge Second Officer, police station Jaitpura commenced investigation. Inquest was held on the bodies of Jamila Bibi and Suhail Ahmad. Three empties of fired cartridges and two bullets were recovered from the spot and their seizure memo was prepared. Seizure memo of the pistol recovered from the possession of the appellant Mohd. Islam was also prepared. Subsequently on 27-2-1989 investigation was taken-over by Sharada Bux Singh, Station Officer of police station Jaitpura and after completing the same he submitted charge-sheet against the appellant.
(3.)The Judicial Magistrate III, Varanasi also committed the case under Section 25/27 Arms Act to the Court of sessions on 1-8-1989 and the same was also tried along with the case under Section 302, IPC. The prosecution in support of its case examined Eleven witnesses and filed some documentary evidence. The accused in statement under Section 313, Cr.P.C. denied the prosecution case and stated that he was employed at Mohd. Islam place and used to reside and eat there. During this period he had love affair with Tahira bibi. She used to often go to market with him. Tahira Bibi went to Bhagalpur where both of them got married and started living as husband and wife. The family members of Tahira Bibi became angry on account of their marriage. The complainant Mohd. Ahmad and Mohd. Juber and their companions came to the appellant's house one week after his marriage and forcibly took away Tahira Bibi with them. They also took away an attache in which documents of marriage and clothes etc. had been kept. On the date of incident he came to Tahira Bibi's house to enquire about her welfare but Mohd. Juber started giving him filthy abuses and assaulted with stone pestle on his head and pushed him inside the kothari. Injury was also caused to his right leg. Tahira Bibi after seeing the assault made upon him ran down-wards raising an alarm. Jamila and Suhail Ahmad were trying to save him. Mohd. Juber who was in a fit of rage took out a pistol, fired upon him but the shots hit Jamila and Suhail Ahmad. Mohd. Juber then ran away leaving the pistol. Meanwhile hearing the alarm, people of the locality arrived at the scene who saved his life. Subsequently police personnel took him to the police station. His injuries were examined in jail hospital. He further pleaded that the complainant by wielding influence and spending money had got him falsely implicated. The accused examined Dr. S. C. Misra, M.O., Jail Hospital in his defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the appellant as mentioned earlier.
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