- (1.) THIS appeal has been preferred against the judgment and order of acquittal dated 21.1.1984 passed by Vth Additional Sessions Judge, Allahabad in S.T. No.359 of 1981 "State Vs. Ibney Ahmad and six others", under Sections 147, 148, 302 read with Section 149 I.P.C., P.S. Dhoomanganj, District Allahabad, acquitting all the accused persons of the charges framed against them.
(2.) THE brief facts relating to the appeal are that Mohd. Murtaza lodged an F.I.R. on 11.8.1980 at 10:20 a.m. naming eight persons as accused under Sections 147, 148, 302 and 149 I.P.C. with the allegation that: "Today on 11.8.1980 at 07:00 a.m. my brother Mohd. Mustafa had gone in east of village towards the Nala and was grazing his cattle near Nala. At about 08:00 a.m. accused Ibney Ahmad, Raja, Khairuddin, Rasheed and Hameed sons of Abdul Raoof and Sainul armed with Lathies and Gayasuddin and Rashid son of Mazeed armed with guns came from the side of village. Seeing that accused persons coming towards him, his brother Mohd. Mustafa tried to flee but they chased and made his gherav in the field of Wahazuddin where there were certain small plants of Bajara, and started beating him with Lathies, while Gayasuddin and Rashid kept extorting with guns in their hands so that nobody may dare to come for rescue and they caused death of his brother Mohd. Mustafa in the field of Wahazuddin. That his brother Mohd. Mustafa was made accused in connection with the case of murder of Noorullah, which took place about 8 years back and being innocent he was acquitted. Accused Ibney Ahmad and others belongs to the family of Noorullah and having enmity on the account they caused death of his brother Mohd. Mustafa. That at a short distance from the place of occurrence Wasi Ahmad and Abdul Moied were grazing their cattle who raised caution to Ibney Ahmad and others on which they chased Wasi Ahmad and Abdul Moied who had to flee towards Eidgah in order to save their lives. Since Nisar Ahmad and Chhotan etc. were also grazing their cattle in the grove they also seen the occurrence and accused persons fleeing towards Begum Sarai. Upon information given by Abdul Moied he and persons of his family reached the spot and seen his brother lying dead in the field in a pool of blood."
(3.) UPON this information, Case Crime No.251 of 1980 was registered against the accused persons and after investigation charge -sheet was submitted. The case was committed to sessions and in turn the Sessions Judge, Allahabad framed charges under Sections 147, 148 and Section 302 read with Section 149 I.P.C. against all accused on 18.2.1982. In order to prove its case the prosecution apart from documentary evidence has produced Mohd. Murtaza, the first informant as P.W. -1, Wasi Ahmad and Abdul Moied (alleged eye witnesses) as P.Ws. 2 and 3, S.I. Afzal Ahmad Khan as P.W. 4, Constable Manikchand as P.W. 5, I.O. Inamul Haque as P.W. 6 and Dr. Iqbal Husain, who conducted post mortem as P.W. 7. Upon completion of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. Due to death of Abdul Rashid son of Abdul Raoof during the trial, the case was abated against him. The accused persons were given opportunity of defence evidence and they produced Ram Asrey Singh, Supply Clerk, District Supply Office, Division -II, Allahabad as D.W. -1.;