POONAM SRIVASTAV,J. - (1.) HEARD Sri V.C. Tiwari Senior Advocate and Sri Satish Trivedi Senior Advocate, assisted by Sri A.K. Awasthi Advocate on behalf of complainant and learned A.G.A. on behalf of the State and Sri G.S. Chaturvedi Senior Advocate assisted by Sri Raunak Chaturvedi Advocate on behalf of accused opposite party. The instant government appeal arises out of a judgment and order of acquittal dated 24.3.1987 passed by the Sessions Judge, Azamgarh in S.T. No. 84 of 1984.
(2.) THE case of the prosecution is that the accused Abul Waish armed with gun, Abul Khair, Shamsher Ahmad and Abu Sahmo armed with country made pistols along with accused Abdul Samad constituting an unlawful assembly on 18.12.1983 at about 10.30 A.M. in village Shekhupur within police station Jeanpur, District Azamgarh sharing a common object committed murder of Shabbir Ahmad. Abdul Samad is alleged to have committed offence punishable under Section 147 I.P.C. The rest of the accused committed an offence under Section 148 I.P.C. The unlawful assembly with premeditated intention murdered Shabbir Ahmad. F.I.R. was lodged on the same day i.e. 18.12.1983 at 2.40 P.M. by Alamgir PW-3, son of the deceased at Police Station Jeanpur situated at a distance of 7 miles. The prosecution alleges that deceased Shabbir Ahmad carried out his business at Bombay and he has filed a civil suit against Abdul Samad for demolition of a wall which is said to have been constructed over chak land of Shabbir Ahmad. A decree was passed in his favour but the same was stayed at the instance of Abdul Samad in an appeal. The motive alleged by the prosecution is the instant litigation. Shabbir Ahmad had moved an application for depositing licensed gun of the accused Abdul Samad but this order was also stayed in appeal by the High Court. It was only few days before the deceased had come from Bombay to his village and on the date and time of occurrence, son of the deceased namely Alamgir was working in his Dhaniya plantation. All the accused started abusing Alamgir from their western sahan. Alamgir abused the accused in retaliation thereafter Abdul Samad came out from his house and exhorted his associates to kill Alam Gir and his father Shabbir Ahmad who had come from Bombay few day before. Abdul Samad went inside his house, brought out his licensed gun and when all the accused approached Alamgir, he ran towards his house. The hue and cry attracted intention of Shabbir Ahmad who came out from his house. Abdul Samad handed over his licensed gun to Abul Waish and exhorted him to kill Shabbir Ahmad. Shot was fired by Abul Waish from the gun. Abu Khair and Abu Sahma fired with their country made pistols, as a result Shabbir Ahmad fell down. The incident is said to have been witnessed by Siraj Ahmad PW-1, Abul Jais PW-2, Alam Gir PW-3, Manzoor Ahmad and Ali Akhtar. On the intervention of the witnesses, the accused ran away. Shabbir Ahmad was taken to the hospital where the doctor declared him dead. The F.I.R. was lodged by Alam Gir PW-3 on the same day at Police Station Jeanpur at 2.40 P.M. Police Station is situated at a distance of 7 miles from the place of occurrence. The prosecution examined a number of witnesses. Siraj Ahmad as PW-1, Abul Jais PW-2, Alamgir PW-3, Ambika Pandey PW-4 is a witness of inquest, Dr. G.C. Chaturvedi PW-5 who performed autopsy, Head Constable Dinesh Singh PW-6 and Narendra Pratap Narayan Singh Investigating Officer PW-7. Six defence witnesses were also examined. Dr. A.C. Tripathi was examined as DW-1 who proved the injury report of the accused Abul Khair and Abdul Samad, S.S. N. Srivastava DW-2 and A.P. Sonkar DW-3 were produced from the electricity department. Subedar DW-4 has deposed that he saw two accused in an injured state. DW-5 Mahadev Prasad who was examined to prove the application moved on behalf of Abdul Samad for registering cross case and DW-6 Lal Chand to prove the G.D. of concerned police station dated 22.12.1983. Learned Sessions Judge while acquitting the opposite party held that there was no motive for the accused to commit murder of the deceased. He also disbelieved the evidence of Siraj Ahmad PW-1, Abul Jais PW-2 and Alamgir PW-3. The finding that all the three witnesses are chance witnesses as well as the fact that PW-1 and PW-2 claimed to have seen the incident from a place, can not be accepted. The prosecution has completely failed to explain the injury of the accused which was proved by doctor.
(3.) SRI V.C. Tiwari Senior Advocate has placed the F.I.R. and post mortem which was performed on 19.12.1983 at 11.30 hours. Ante-mortem injuries found by doctor are detailed below:- 1. Firearm wound margins inverted 1 cm x 1 cm over left side back, 3 cm away, slightly above left clavicle muscle deep, no scorching and tattooing present. 2. Four firearm wounds over outer side of left arm upper part, each measuring 1 cm x 1 cm in two parts, two above and two below each at a distance of 4 cm transversely, and 8 cm vertically, margins inverted wound of entry, with two wounds just opposite liner two wounds of entry, each measuring 2 cm x 2 cm margins averted wound of exit as shown in diagram upper end of the liamens bone shaft forehead, inner two wounds of entry, communicating with wound of exit, and the upper two wounds were muscle deep one pellet recovered from the muscle direction of wound was from left, no scorching, tattooing and singing present. 3. Firearm wound 1 cm x 1 cm x chest cavity deep, on left side of chest, 3-1/2 cm above left nipple at 12 O'clock position margins inverted (wound of entry), no scorching, no tattooing, no singing of hairs, wound was directly from in front behind in between 3rd and 4th left ribs space lacerated the tissues underneath. Upper pole of left lung was lacerated in an area of 2.5 cm x 2.5 cm. 4. Firearm wound 1 cm x 1 cm x chest cavity deep over left front of chest 4 cm away from left nipple at 4 O'clock position, margins inverted (wound of entry), no scorching, no tattooing, no singing of hairs, below fracturing 6th left rib lacerating middle of left lung, 2 cm x 2 cm and 1 left vertical of heart (2 cm x 2 cm) one big metallic pellet recovered by the left side of 10th thoracic vertebrae which is fractured, chest cavity contains about two pints of dark liquid blood, direction from front obliquely back and to right side. 5. Firearm wound 1 cm x 1 cm x chest and abdomen cavity deep, 14 cm from left nipple, at 5 O'clock position margins inverted (wound of entry) no scorching, no tattooing, no singing of hairs, fracturing left 9th rib below going to right lacerating the tissues below and lacerating stomach in middle 2 cm x 2 cm, then lacerating left lobe edge of liver 3 cm x 1.5 cm, 1 big pellet recovered from the muscle of wall below. Abdominal cavity contains dark liquid blood about one pint. Cause of death was due to syncope, as a result of ante-mortem injuries. ;