YUNUS Vs. STATE OF U.P.

JUDGEMENT

(1.) Mr. Rajeev Mishra, Advocate holding brief of Mr. Sonia Mishra, learned counsel for the appellant and Ms. Ruhi Siddiqui, learned A.G.A. for the State were heard and lower court record was perused.

(2.) Under challenge in this appeal is the judgment and order dated 17.3.2008 passed by learned Additional Sessions Judge/Special Judge E.C. Act Hardoi in Sessions Trial No. 297 of 2003 arising out of Case Crime No. 214 of 2002, Police Station Mallawan, District Hardoi whereby present appellant Mohammad Yunus was convicted for the offence under Sec. 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 5,000/ - with default stipulation of one year additional rigorous imprisonment. However, he was acquitted for the charges under Sec. 504 and 506 I.P.C.

(3.) In brief the case of the prosecution was that complainant Mohd. Ishak moved an application to S.P. Hardoi on 28.6.2002 alleging therein that his father Yusuf had died about eight months ago. After his death entire ancestral property was grabbed by appellant Yunus. The appellant, Kamaruddin and Ishtiyak were real brothers. Complainant and his other brothers were living in Bombay to earn their livelihood. Because of the shortage of work, they came back to their village on 1.6.2002. Appellant Yunus, who happens to be the real brother of the complainant and deceased and his son Shanu demanded money from them to purchase fertilizers for the crop on 21.6.2002. The complainant side replied that when they are not sharing the agricultural produce then why they should share the expenses. On this, appellant Yunus and his family members hurled abuses and also extended threats to the complainant side. On 22.6.2002 at about 10:00 a.m. brother of complainant, namely, Kamaruddin (deceased) was sitting on his door then appellant Yunus armed with Tamancha and co -accused Shanu armed with lathi reached there and again demanded money for fertilizer. When these persons declined to give them money then Yunus took out country made pistol and fired, which did not hit any one thereafter complainant and his brother Kamaruddin ran to save themselves then co -accused Shanu with the help of lathi obstructed them and appellant Yunus opened fire at Kamaruddin due to which, he fell down. Thereafter Yusuf and Shanu ran away from the place of occurrence. This incident was witnessed by Ramjaan, Mohd. Ishtiyak and they had challenged the accused persons. Thereafter the complainant and his family members took Kamaruddin in injured condition to Bangarmau Hospital where he died. Thereafter the doctor sent an information of his death to the Police Station Bangarmau. On the basis of the said information, inquest proceedings and postmortem were conducted. Inspite of that no case was registered by the police. The complainant made several efforts to lodge the F.I.R. but his F.I.R. was not registered. Then the complainant moved an application to S.P. Hardoi and under the orders of the higher authorities, F.I.R. of this case was registered on 19.7.2002 at 10:00 a.m.