M. C. Jain, J. - (1.) -The State has come in appeal against the order of acquittal dated 14.10.1981 passed by Sri S.C.M. Tripathi, the then IVth Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 119 of 1980. There are six accused-respondents who stood tried before the court below under Sections 148, 449 and 302, I.P.C. read with Section 149, I.P.C. The deceased was one Irshad Hussain, son of Mohd. Hussain (P.W. 1). He was shot dead on 15.11.1979 at about 9 p.m. while lying asleep at his house situated in Mohalla Bijlipur, P.S. Kotwali, District Shahjahanpur. The F.I.R. was lodged by Ishtyaq Hussain P.W. 3 (cousin of the deceased) the same night at 11.20 p.m. It was alleged that all the accused-respondents along with two strangers formed an unlawful assembly in the prosecution of common object of which they barged in the house of the deceased and shot him dead. The deceased and accused-respondents lived in the same locality. Out of them, Hassu, Firasat and Nizakat Ali are real brothers. Makhdoom is their cousin. Abid Hussain and Javid Hussain are brothers and they are brothers-in-law (sala) of Nizakat.
(2.) MOHAMMAD Hussain P.W. 1 (father of the deceased) and his younger brother Ejaz Hussain (father of Istiaq Hussain P.W. 3) lived separately in different portions of the house. The portion in occupation of MOHAMMAD Hussain was towards the east. The western portion was in the occupation of Ejaz Hussain. Each portion had a raised verandah on the front side. The previous background was that about 5 or 6 months before this incident, Ashraf Ali alias Palli father of accused Hassu, Firasat and Nizakat Ali was murdered. The deceased and four others were being prosecuted for that murder at the time of the present incident. The deceased Irshad, his father Mohd. Hussain P.W. 1 and his two other brothers including Ishaq Hussain lay asleep on different cots in the verandah. There was a glowing lantern hanging by the peg fixed in the wall of the verandah. All the accused along with two strangers came from towards north through the lane in the east of the portion of Mohd. Hussain. They brought a wooden staircase and fixed it by the side of eastern boundary wall. Accused Firasat and Makhdoom, armed with gun and countrymade pistol respectively, scaled the wall through staircase and reached the roof of the pacca construction of Ejaz Hussain. They climbed down through the staircase and reached near Ejaz and his son Ishtiaq and on gun point commanded them to keep lying down and keep quiet. Firasat went towards the east and opened the door towards the lane. The accused Hassu and Javid armed with guns, Abid armed with country-made pistol, Nizakat armed with an axe and two strangers armed with Kantas entered the house through the door. They enquired as to where Irshad lay. Someone amongst them pointed towards him. All of them including Firasad and Makhdoom went towards Irshad. Accused Hassu and Javid opened fire on him and cut short his life while he was lying asleep. At that time, there had been electric light in the house. All the accused, making fires, made their escape towards the northern side. On the alarm raised by Ishtiaq, Rahmat Ali, Raees, Shafayat Ullah and others were attracted to the scene of occurrence. The accused were allegedly seen and recognised in the light of lamp and electricity. Ishtiaq himself scribed the report and went to the police station accompanied by Ishaq and lodged it there. A case was registered and investigation followed at the hands of Investigating Officer Mahendra Pal Tyagi P.W. 4 who immediately proceed to and visited the place of occurrence in the night. After necessary formalities the dead body was sealed and sent for post-mortem which was conducted on 16.11.1979 at 4.30 p.m. by Dr. S. K. Mehrotra P.W. 5. The deceased was aged about 38 years and following ante-mortem injuries were found on his person : (1) Gunshot wound of entry 5 cm. x muscle deep x 3 cm. breadth on middle of interior side of right arm. Blackening and Tattooing present. (2) Gunshot wound of exit 6 cm. 6 cm. through and through on inner side of middle of right arm. (3) Gunshot wound of entry 2 cm. 2 cm. chest deep front of chest 5th rib in clavicular line. Direction forward and towards left side. No blackening. (4) Gunshot wound of entry 2 cm. 2 cm. full thickness of neck on middle of neck or left side. Direction forward and towards right side. Blackening present. (5) Gunshot wound of exit 10 cm. 6 cm. on right side of upper part of neck below right mastoid process. As is evident, the deceased had received three gunshot wounds of entry and two of exit. One of the gunshot wounds of entry was on middle of interior side of right arm with blackening and tattooing, the other on front of chest and third on middle of neck of left side. Exit wounds were on inner side of middle of right arm and on right side of upper part of the neck.
(3.) THE defence was of denial and of false implication due to ill-will and enmity. Apart from the medical and formal evidence including that of investigation, the prosecution relied upon the testimony of Mohd. Hussain P.W. 1 (father of the deceased), Ishaq Hussain P.W. 2 (brother of the deceased) and Ishtiaq P.W. 3 (cousin of the deceased) as eye-witnesses of the incident. The prosecution evidence did not find favour with the learned trial Judge for various reasons discussed in the impugned judgment and he recorded acquittal.;