- (1.) MAITHLI Sharan, J. The Stale has preferred this appeal against the order of conviction and sentence dated 30-11-1978, passed by Sri B. P. Srivastava, III Addl. Sessions Judge, Pratapgarh in ST. No. 145 of 1977, acquitting all the four respondents for the offences under Sec tions 302, 302 read with Section 34, IPC, 307 and 307 read with Section 34 IPC. One of the four accused-respondents, namely, accused-respondent Mukhtar Ahmad has expired after filing of this appeal by the State, hence it has abated as against him.
(2.) THE prosecution story, in brief, is that informant Murtaza Hussain PW-3 was resident of Bachhrauli, Police Station Kunda, district Pratapgarh and all the four accused persons were also resident of the same village, and that they all were known to each other. THE deceased accused-respondent Mukhtar Ahmad and the respondent Sanaullah were real brothers, and accused-respondent Mukhlar Ahmad and Mohammad Wasi were gun licensees. THE incident occurred on 8-6-1977 at about 6. 00 p. m. when PW-3 Murtaza Hus sain was sitting at the door alongwith his father Iqramuddin, his younger brother Mustafa Hussain and other persons were also sitting nearby. According to the prosecution a quarrel had started between accused-respondent Mukhtar Ahmad and one Jawad Hussain (PW-4) in regard to a drain in front of the door of one Liyaqat-Ullah. On hearing the noise of the quarrel the informant Murtaza Hussain PW-3 and other persons sitting nearby rushed to the scene of occurrence. Meanwhile, accused respondent Mukhtar Ahmad had brought his licensed gun; accused-respondent Sanahullah was armed with country made pistol, accused Altaf Hussain was empty handed. Accused Mohammad Wasi and Altaf Hussain instigated the other two ac cused to kill Jawad PW-4 and then ac cused Mukhtar Ahmad fired his gun which hit Iqramuddin, father of Murtaza Hus sain (T W-3); he fell down and expired in stantaneously. Accused-respondent Sana hullah had also fired his country made pistol which injured Mohammad Rafiq and others. Afterwards the accused-respondents fled away from the place of occurrence. A written report was got written by the informant Murtaza Hussain (PW-3); the scribe was one Kamal Ahmad; it was read over and explained to PW-3 Murtaza Hussain who put his signatures thereon and afterwards it was given at the Police Station Kunda. The said report is Ext. ka-1, and on its basis FIR was prepared and the investigation was started. Medical examination of the injured persons was got done at the Medical Hospital, Kunda. The Investigating Officer examined the injured and afterwards he rushed to the place of occurrence. The injured persons were sent to Allahabad for further treat ment. The injured Rafiq died at Al lahabad, the next day on 9-6-1977. The Investigating Officer, after reaching the place of occurrence, started investigation; he prepared inquest report and other necessary documents in respect of the dead-body of Iqramuddin his post-mor tem examination was got done at the Government Hospital; the witnesses were examined and the site-plan of the place of occurrence was also prepared. The Inves tigating Officer later on collected the blood stained and ordinary earth from the place of occurrence, and scaled it. He thereafter sent the recovered articles in scaled condition to the Police Station for being sent for further examination. Ac cused persons were absconding, hence the procedure under Sections 82/83, Cr. PC. adopted. However, later on all the four accused persons surrendered in the Court of C. J. M. , Pratapgarh. After completing the investigation in this case charge-sheet was filed in the Court of C. J. M. wherefrom the case was committed to the Court of Sessions, Pratapgarh. Charges were framed against the respondents for the offences under Sections 302,302 read with Section 34,307 and 307 read with Section 34, IPC, and they were read over and ex plained to the accused-respondents who pleaded not guilty and claimed to be tried. The prosecution examined only four witnesses of fact, namely, Mustafa Hussain PW-1, Mohammad Rais PW-2, Murtaza Hussain PW-3 and Jawad Hus sain PW-4. They are, according to the prosecution, the eye-witnesses of the inci dent in question. Besides, the Investigat ing Officer Chhabinath Tiwari (PW-5) was also examined in the case by the prosecu tion. The documents prepared during the investigation were also filed in the case by the prosecution to prove the guilt of the accused persons. The accused persons in their statements under Section 313, Cr. P. C. pleaded not guilty and stated that they had been falsely implicated in this case on account of enmity. The main accused-respondent Mukhtar Ahmad (now dead) had admitted that he and accused-respon dent Sanaullah were real brothers and that they were gun licensees. According to him though the occurrence did take place, but it had not taken place as was shown by the prosecution. According to him there was some dispute in regard to one grove of which he, the deceased Iqramuddin, Ram Adhar and Kedar had their shares and when he had gone to pluck some fruits in the grove then other shareholders forbade him, and then there had occurred some quarrel. According to the accused Mukhtar Ahmad he had to fire his gun in self defence. Apparently enough, the story given by the accused- respondent Mukhtar Ahmad is clearly different from the story given by the prosecution to the effect that there had occurred some quarrel between PW-4. Javed Hussain and accused persons in regard to some drain.
(3.) SO far as the factum of the occur rence in which two persons died and others injured is concerned, it is the ad mitted position that such an incident did occur and the persons named in the first information report did receive injuries. However, the place and the manner of occurrence is disputed. Thus, the point for consideration now boils down to this much only, as to whether the prosecution could prove its case beyond doubt that the occurrence h;d occurred in the manner it had been brought by it. True, though the accused-respondents had brought the fac tum of self- defence in their statements u/s. 323, Cr. P. C. and had pleaded that the place and the manner of occurrence were different, but it is immaterial if they did not adduce any evidence to that effect to establish their case, as the legal position is very much settled that the prosecution has to prove its case beyond all shadow of doubts, and it cannot take advantage of any weakness of the defence version. As already pointed out above the prosecution has examined only five wit nesses, out of whom first- four witnesses are witnesses of fact, claiming themselves as eye-witnesses, and the last one witness is the Investigating Officer, Chhabinath Tiwari PW-5. Since the medical evidence regarding the post- mortem reports etc. was not disputed, on the contrary rather admitted, hence the prosecution did not adduce any oral evidence in that regard.;