M.Chaudhary, J. - (1.) This is a government appeal from judgment and order dated 31st of March, 1981 passed by III Additional Sessions Judge, Budaun in Sessions Trial No. 386 of 1978 State v. Aminuddin and Anr. acquitting the accused of the charge levelled against them under Section 307 read with Section 34 IPC. Trial of accused Raisul Hasan was separated as at the stage of the statement of the accused he absented himself and his presence could not be procured. Accused Janab Alain died during pendency of the case.
(2.) Brief facts giving rise to this appeal are that Argaban-ud-din and Burhan-ud-din were real brothers and Imran-ud-din was the son of their cousin sister Bujan. Bujan was married to Iqtidar-ud-din. Iqtidar-ud-din and Biqar-ud-din were real brothers and Aquil Ismail was the son of their sister Salam Begum. Nozim-ud-din was the son of Biqar-ud-din. Janab Alam, Nawab Alam and Zaney Alam were real brothers and Raisul Hasan was the son of Zaney Alam. Zulfikar-ud-din and Aminuddin were the sons of Smt Idrisan, cousin sister of Janab Alam. Argaban-ud-din and their family members were on inimical terms with Aminuddin and their family members. Some 5-6 months prior to the occurrence Janab Alam was caused gunshot injury and a report of that incident was lodged by Aminuddin against Iqtidar-ud-din and his ccousins Nazim-ud-din and Aqull Ismail and all three were being prosecuted for causing firearm injuries to Janab Alam During the night between 3rd and 4th of August 1978 Argaban-ud-din and his sister's son Imran-ud-dln along with one Shakir, Asrar and Shabbir Khan were returning back to their village from Kailash 'Talkies after seeing night night show and at about 00:30 mid night as they reached near Har Prasad temple they saw Aminuddin and Janab Alain armed with guns along with Zulfiqar-ud-din with countryrnade pistol and Raisul Hasan with lathi present near the boundary of the temple in the electric light. Sighting Imran-ud-din and Argabart-ud-din they shouted that they had good opportunity and they would not let them go alive and immediately Janab Alarn fired a shot at Argaban-ud-din but he had a narrow escape and Aminuddin fired at Imran-ud-din hitting him at his face and again Janab Alam fired at Imran-ud-din causing firearm injuries at his should of and their two associates were shouting that they would not be permitted to go alive. Sustaining the firearm injuries Imran-ud-din fell down and then all the miscreants took to their heels shouting that they had avenged for being fired at. Then leaving injured Imran-ud-din under supervision of Shakir, Asrar and Shabbir Khan, Argaban-ud-din went to his house and informing his family membera thereabout returned back to the spot but by that time his companions had taken Imran-ud-din to the Hospital. Then Argaban-ud-din ruslied to the Hospital and after seeing him he went to the police station Budaun Kotwall and gave written report of the occurrence to the police there at 2:40 a.m. the same night. The police prepared check report on the basis of written report of the occurrence handed over by Argaban-ud-din at the police station and made entry regarding registration of the crime in GD. SI Laxman Singh to whom, investigation of the crime was entrusted recorded statement of Argaban-ud-din, the first informant at the police station itself.
(3.) Medical examination of injured Irnran-ud-din by Dr Hamidullah, Medical Officer District Hospital Budaun at 1:40 a.m. revealed below holed injuries on his person: 1. Multiple gun shot Wounds dispersed an face, neck, lips, chin measuring 0.2 cm x 0.2. cm circular in shape with Inverted margins. Fresh oozing of blood from the wounds present but no tattooing or blackening present. Dispersal about 1.2 cm apart. 2. Multiple gun shot wounds dispersed on left deltoid region left Upper arm top of left shoulder region, each measuring 0.2 cm x 0.2 cm but no tattooing or blackening present. Dispersal about 1.2 cm apart. 3. Left canine tooth broken. The doctor opined that all the injuries were caused by firearm and fresh in duration. Injury no. 3 was found to be grisvous. All the injuries were kept under observation.;