JUDGMENT Imtiyaz Murtaza, J.
1. This appeal is filed against the judgment and order dated 14.7.2003 passed by Additional Session Judge, Fast Track Court No. 5, Meerut in S.T. No. 316 of 1998 whereby the appellant is convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine 6 months imprisonment. He is further convicted under Section 25 Arms Act and sentenced to undergo R.I. for two years and a fine of Rs. 500/- and in default of fine one month R.I.
2. Brief facts of the case mentioned in the first information report lodged by Sirajuddin are that the appellant Noor Alam performs the work of carving alongwith his brother Islamuddin. On 8.10.1997 some altercation had taken place between Noor Alam and Islamuddin regarding some money, but the matter was settled. On 9.10.1997, his brother Islamuddin was going on his scooter. Noor Alam was sitting on the back seat. He alongwith Abdul Khaliq and Mohd. Irfan were also following Islamuddin on a scooter. It is alleged that when the scooter of Islamuddin reached at Mohalla "Purva Abdul Wali Masjid Imiliyan" at about 9.50 A.M., on account of the earlier enmity Noor Alam, while sitting on the back seat of the scooter, fired on Islamuddin, who fell down. He, Abdul Khaliq and Mohd. Irfan saw Noor Alam firing on his brother. It is further alleged that when Noor Alam tried to run away, he was apprehended along with his pistol by the informant, one Con. Sudesh Kumar and several other persons. Islamuddin died on the spot and Noor Alam was brought to the police station. The first information report was lodged by Sirajuddin at the police station. The F.I.R. was registered at Case Crime No. 215/97 under Section 302 I.P.C. and Case Crime No. 216/97 under Section 25 Arms Act. The report is Ext. Ka. 5 and G.D. entry is Ext. Ka. 6. After the registration of the case, Nanke Singh Janwar started the investigation. He recorded the statements of Sirajuddin, Noor Alam, Con. Karan Singh and Ashraf. He reached at the place of occurrence and prepared the recovery memo of blood stained and plain earth which is Ext. Ka. 3. He also prepared the site plan which is Ext. Ka. 7. He recorded the statements of the witnesses and inquest witnesses. On 10.10.1997 he recorded the statement of constables and other witnesses and submitted the charge-sheet which is Ext. Ka. 8. S.I. S.K. Dixit, had prepared the report to R.I., Ext. Ka. 10, report to C.M.O. for taking clothes Ext. Ka. 11, report to C.M.O. for the post-mortem Ext. Ka. 12, inquest report, Ext. Ka. 13, challan lash, Ext. Ka. 14, photo lash, Ext. Ka. 15 and sanction of the District Magistrate for the prosecution of accused under Section 25 Arms Act (Ext. Ka. 16).
3. Post-mortem on the dead body was conducted by Dr. V.P. Gupta on 9.10.1997 at 3.30 P.M. He had noted the following ante- mortem injuries :
G.S.W. of entry 1 cm x 1 cm cavity (neck) deep on back of neck. It is 6 cms. above to tip of 7th C. vertebra. Singing of hair present, direction forward.
4. In the opinion of the doctor the cause of death is coma as a result of injury sustained.
5. After the submission of charge sheet the case was committed to the Court of Session. Charges under Section 302 I.P.C. and 25 Arms Act were framed.
6. The prosecution in order to prove its case examined 6 witnesses. P.W. 1, Sirajuddin, P.W. 2, Mohd. Irfan, P.W. Abdul Khaliq, P.W. 4 Dr. V.P. Gupta, P.W. 5 Con. Karan Singh and P.W. 6 Nanke Singh Janwar.
7. The case of the defence is of denial and false implication.
8. The evidence of P.W. 1, Sirajuddin, shows that the deceased Islamuddin was his younger brother. He was a contractor of wood. On 9.10.1997 at about 9.30 -10.00 A.M. Islamuddin was going on his scooter to Naveen Hotel, Abulen in connection with some work. Noor Alam was sitting on the back seat of the scooter. He was also on his scooter alongwith Mohd. Khaliq. On one scooter Mohd. Irfan was also following Islamuddin. It is alleged that when the scooter of Islamuddin reached at the main road, in front of the Delhi Paint shop, and this place being crowded, the scooter of Islamuddin slowed down. Noor Alam took out his country made pistol and fired upon Islamuddin, which hit him on the head. Islamuddin fell down from the scooter and died. He, Mohd. Khaliq, Mohd. Irfan and several other persons came near Islamuddin. Noor Alam tried to escape but he was apprehended by Con. Sudesh Kumar, who had also arrived. A country made pistol was recovered from the hand of Noor Alam. They had brought Noor Alam to the police station and a report was lodged at the police station which is Ext. Ka. 3.
9. P.W. 2, Mohd. Irfan, had also supported the prosecution case. He stated that on 9.10.1997 at about 9.30 A.M. he was going to Naveen Hotel, Abulane from Zakir colony in connection with his work. Abdul Khaliq met him near Hapur stand and he had taken lift on his scooter for going to Begampul. It is further deposed that when his scooter reached near Imiliyan, which was a very crowded place. He saw that Islamuddin was also going on his scooter. Noor Alam was sitting on the back seat. Sirajuddin, elder brother of Islamuddin, was also going on a scooter. He further deposed that when the scooter reached near the Delhi Paint shop, Noor Alam took out a country made pistol and fired on Islamuddin. He fell from the scooter. Noor Alam tried to run away but he was apprehended on the spot. A country made pistol was recovered from his hand. Sirajuddin had lodged the report at the police station.
10. P.W. 3, Abdul Khalid, deposed that on 9.10.1997 Islamuddin was going on his scooter and Noor Alam was sitting on the back seat. He was sitting on the back seat of scooter of Irfan. He further stated that when the scooter of Islamuddin reached in front of the shop of Delhi Paint, Noor Alam fired from his pistol on Islamuddin, who fell down from the scooter. Noor Alam tried to run away but he was apprehended alongwith country made pistol.
11. P.W. 4 is Dr. V.P. Gupta who had conducted post-mortem examination. The report is Ext. Ka. 4. According to his opinion, the death of the deceased might have caused on 9.10.1997 at 9.45 A.M.
12. P.W. 5 is Constable Karan Singh who had prepared the chik F.I.R.
13. P.W. 6 is investigating officer Nanke Singh Janwar. After the investigation he had submitted the charge sheet against the accused.
14. The Sessions Judge after considering the evidence on record convicted the appellant as aforesaid.
15. We have heard the learned Counsel for the appellant and learned A.G.A. for the State and perused the record.
16. The Counsel for the appellant has challenged the findings of the trial Court on various grounds. The first contention of the Counsel for the appellant is that according to the prosecution case occurrence took place in the market place but no independent witness examined to support the prosecution case. P.W. 1 Sirajuudin is the real brother of the deceased. P.W. 2 Mohd. Irfan and P.W. 3 Abdul Khalid are resident of the village of the informant and previously known to them. This submission of the Counsel for the appellant has no substance. The law on the point is well settled that the testimony of relative witnesses cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimony with caution.
17. The testimony of the witnesses shows that the deceased Islamuddin was a contractor of wood. The informant, witnesses and accused are in the same business and known to each other. The witnesses were extensively cross-examined but nothing could be elicited to doubt their credibility or presence at the place of occurrence. The witnesses have supported the prosecution case in all material particulars and their evidence is consistent, inter se, as well as prosecution case disclosed in the first information report and by the witnesses in their statements before the police. The manner of assault is corroborated by the post mortem examination which shows single fire arm injury from a very close range. The arrest of the appellant at the place of occurrence also corroborates the eye witness account. The Counsel for the appellant contended that the prosecution could not explain the reason for non-examination of constable Sudesh Kumar. The testimony of the eye witnesses shows that they, alongwith constable Sudesh Kumar had arrested the appellant. The evidence of the spot arrest of the appellant is furnished by the eye witnesses and there was no use in multiplying the witnesses about the arrest of the accused. The arrest of the accused is fully proved by the G.D. entry of the police station and the case registered against the appellant under Section 25 Arms Act. In this situation it was not necessary to examine constable Sudesh Kumar when the factum of arrest of the appellant alongwith country made pistol is proved beyond reasonable doubt. The Counsel for the appellant also challenged that the place of occurrence is not established in this case. It is submitted that according to the prosecution case the place of occurrence is in Mohalla Purva near Abdulwali Masjid Imliyan which is on. Hapur Road near Delhi Darbar. P.W.I Sirajuddin stated that when the scooter of Islamuddin reached Imliyan Mohalla on the main road in front of the shop of Delhi Paint accused had fired at Islamuddin. This is also supported by Mohd. Irfan and Abdul Khalid also. In the site plan also the investigating officer had shown the place of occurrence in front of the shop of Delhi Paint. P.W. 6 the investigating officer had also supported the place of occurrence. The investigating officer in cross examination stated that he did not mention Masjid in the site plan, he did not mention the Delhi Darbar Restaurant, he could not tell the distance of place of occurrence from Mohall Abdulwali, he could not tell the distance of Delhi Darbar from the place where the dead body was lying. There is no substance in the submission of the Counsel for the appellant. The eye witnesses account and site plan fully prove the alleged place of occurrence. The prosecution has fully proved its case by credible evidence which is corroborated by the medical evidence and arrest of the appellant on the spot.
18. The Sessions Judge has rightly recorded findings of conviction and we also concur with the same.
19. For the reasons stated above, the appeal is dismissed appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial Court and affirmed by us.
20. Office is directed to send a copy of this order to the Chief Judicial Magistrate, Meerut, within fifteen days.