- (1.) R. D. Shukla, J. This is an appeal against the judgment and order dated 30-1-1981 passed by IV Additional Sessions Judge, Hardoi convicting appellants Zul fikar Khan, Mashuq Khan and Laddan under Sections 147, 302/149, I. P. C. and sentencing each of them to imprisonment for life under Sections 302/149, I. P. C. and one year's rigorous imprisonment of each accused under Section 147, I. P. C. Accused appellant Wasim Khan has been convicted under Sections 148 and 302, I. P. C. and under Section 25 of the Arms Act. He has been sentenced to undergo imprisonment for life under Section 302, I. P. C, two years' Rigorous Imprisonment for the offence under Section 148, I. P. C. and one year's Rigorous Imprisonment for the offence under Section 25 of the Arms Act. All the sentences against the accused appellants have been ordered to run concurrently.
(2.) THE First Information Report was lodged orally at police station Shahabad, District Hardoi on 24-8- 1979 at 3. 30 p. m. for the offence of the same day at about 12 in the afternoon naming six accused, namely Zulfikar Khan, Mashuq Khan, Wasim Khan, Nazir Khan, Manphul and Laddan on the ground that one Bashir used to run a flour mill in the partnership in village Magiyawan. THEre is a tube-well of Bashir near the said flour mill. It was about 8 a. m. when Altaf, son-in-law of Bashir informant slapped Laddan who was servant of Zulfikar Khan and used to stay at the said flour mill. He wanted Altaf to start the tube-well but Altaf refused to do so. Laddan become angry and said that Altaf and his father-in-law Bashir used to take half share from the flour mill for no work. Altaf also became angry and he slapped Laddan who went away saying that he would take revenge. Sabir, son of Bashir had also reached there. He tried to pacify the matter but Laddan left for Shahabad in angry frame of mind. It was about 12 in the after-noon when Laddan with his Master Zulfikar Khan, Mashuq Khan, Wasim Khan, Nazir and Manphul reached at the said flour mill. Laddan called the inform ant. He asked for the presence of Sabir and Altaf at the flour mill to settle the dispute. THEy all went there. Sabir and Altaf were armed with 'lathis'. Laddan started talk ing heatedly. Bashir tried to pacify the matter but Laddan was unrelenting. Sabir also requested with folded hands to pacify the matter. In the meantime Shakir son of Bashir, Shrikrishna, Balvan, Vasil Khan and Basant also reached there. Mashuq caught hold Sabir by his neck. Zulfikar exhorted and then Wasim fired at Sabir with his country-made pistol. Sabir fell down. THEreafter the accused tried to run away but the informant and others sur rounded them and after inflicting 'lathi' injuries arrested Wasim and Zulfikar at the place of occurrence. Mashuq Khan, Laddan, Nazir and Manphul ran away. Mashuq was also injured. Sabir died in stantaneously. Wasim and his country-made pistol alongwith Zulfikar were left in the custody of Chaukidar and Bashir went to lodge the F. I. R. THE case was registered. Investigation followed. THE dead-body of Sabir was sent for post- mortem report on the record found fire-arm wound of entry on the back of left shoulder. Injury No. 2 was lacerated wound on the lower hip and injury No. 3 was abrasion on the right side of face. On the side of accused Zulfikar, Wasim and Mashuq were medically ex amined on 24-8-1979 between 9. 45 p. m. to 10. 35 p. m. THEse accused had injuries on their person. Mashuq had one punctured wound on the back and upper part of the right fore-arm. THE F. I. R. did not allege that any one had a weapon at the time of occurrence which could cause this punc tured wound. THEse three accused had also suffered injuries. THEir injuries were ex plained in the F. I. R. After completion of the investigation the accused were charge-sheeted. During the trial evidence of P. W. 1 Bashir Khan, P. W. 2 Altaf and P. W. 3 Balvan had been recorded. P. W. 4 Dr. S. C. Vaish proved the injuries of the three accused noted above. He stated that punctured wound of accused Mashuq could be caused by his failing on a pointed piece of wood. P. W. 5 Dr. A. N. Singh proved the post mortem report of the deceased. P. W. 6 constable Surendra Pratap Singh recorded the F. I. R. and G. D. entries on its basis. P. W. 7 Lallu Singh was the Investigating Officer of this case. This was the prosecution evidence on the record. THE accused denied the charges but alleged in their statements that there was a dispute in ac counting of the flour mill. Altaf, Sabir, Shakir and Shabir started abusing them and Altaf had a country-made pistol/there was scuffle and accidentally country-made pistol was fired, resulting in the death of Sabir. THE accused did not examine any one in defence. This was the entire material on the record on the basis of which the learned trial Judge came to the conclusion regarding aforesaid guilt of the accused appellants resulting in their conviction and the present appeal. THE appeal has been contested on the ground that the trial Court failed to appreciate the evidence on the record reaching on incor rect conclusion regarding the guilt of the appellants. The F. I. R. in this case settled that the flour mill was in the partnership be tween Bashir and Zulfikar. It was on ac count of this flour mill that the dispute arose in which Laddan-a servant of Zul fikar was slapped by Altaf son-in-law of informant Bashir. The ocular evidence of P. W. 1 Bashir, at page 3 of his exam ination-in-chief, specifically stated that said flour mill belonged to exclusively to the inform ant and that there was no partnership with Zulfikar. Laddan, was servant in the said flour mill but he was kept by the informant Bashir on the recommendation of Zul fikar. The F. I. R. thus has been con tradicted regarding this fact of the flour mill and this contradiction negatived al leged basis of the whole trouble detailed in the F. I. R. The statement of P. W. 1 Bashir, therefore, in this regard is against the con tents of the F. I. R. This could be on account of the fact that Bashir later on after the involvement of Zulfikar in the case thought it fit to claim said flour mill ex clusively forgetting that the F. I. R. gave a different version of informant on the same point. This contradiction on the material particular of the case creates lacuna in the prosecution case. This statement further negatived the circumstance under which subsequent trouble took place at 12 in the afternoon between the parties resulting in the death of Sabir at the hands of Wasim. This statement of informant Bashir, there fore, has created doubt on the genuineness of the prosecution case. Cross-examina tion of this witness in para 11 further showed that this witness disowned the por tion of the F. I. R. mentioning that the flour mill belonged to him exclusively. This statement effectively contradicted the F. I. R. that there was a partnership in the said flour mill. The cross-examination fur ther revealed that the accused did not fire at any other person and they did not wield their 'lathis' until the country-made pistol was fired. Para No. 15 of the cross- ex amination further showed that there was a scuffle at the time of occurrence. Similar is the position of the statement of P. W. 2 Altaf. The statement of Altaf is clear that he slapped Laddan and that Laddan had threatened to take revenge from him. It is not clear as to why Sabir was fired at by Wasim because para No. 4 of the cross-ex amination of P. W. 2 Altaf revealed that Sabir was not present in the morning when Laddan was slapped. This witness further stated that Shabbir, Bashir and Sabir had no 'lathis'. They also had no other weapon. The F. I. R. on the record states that Sabir and Altaf had 'lathis' when they came to the flour mill at 12 in the after noon. This portion of the F. I. R. has been contradicted by P. W. 2 Altaf in para No. 8 of this cross- examination. P. W. 3 Balvan sup ported the production case. Cross- ex amination of this witness in para 6 revealed that scuffle in between the two parties continued for about 15 minutes. This witness did not state that 'lathis' were wielded to effect that arrest of the accused persons, namely, Zulfikar and Wasim The eye-witnesses' account of this case, therefore, has not been able to ex plain as to how the informant's said be came aggressive immediately after the fire from the country-made pistol by Wasim when earlier to it they were all requesting with folded hands to Wasim and others to pacify the matter. They had no fear of the country-made pistol when according to these witnesses it had already killed one person. The informant and his side started wielding 'lathis' without caring for the fire-arm allegedly in the hands of Wasim. It is strange that Wasim who had killed one person a second earlier did not use this weapon again though he, Zulfikar and Mashuq were beaten with 'lathis' and Wasim and Zulfikar were arrested at the spot. The entire story appears to be unreal set of facts. It does not stand to reason and appears, improbable. Adding, to this con fusion in the injury No. 5 of accused Mashuq, namely, punctured wound on his fore-arm. Though the doctor recording the injury stated that it could be caused by the accused falling on a pointing piece of wood but there is no prosecution evidence to substantiate this possibility. This injury of the accused, therefore, stood unex plained. It obviously means that there hap pened something which was concealed by the prosecution in the F. I. R. and therefore, the version of the accused, given under Section 313, Cr. PC. is correct that Altaf had a country-made pistol which was fired accidentally in scuffle between the two sides at the time of the settlement of the dispute relating to accounts of the flour mill at 12 in the afternoon on the day of occurrence. Altaf, accbrding to the F. I. R. , had slapped Laddan earlier in the day and when he was called from his house at the place of crime by Laddan who had earlier threatened to take revenge then in all likelihood Altaf should have gone to the scene of crime with a country-made pistol and the statement of the accused, there fore, looks not only reasonable but prob able also that the country-made pistol was fired accidentally in the scuffle at the time of occurrence. Accidentally hit of the fire arm caused death of Sabir. The accused, under these circumstances, could not be held guilty for the offence of murder. The trial Judge, therefore, erred in his ap preciation of the facts and circumstances of this case. The impugned judgment, therefore, cannot be sustained. It has to be set aside. The result, therefore, is that the appeal is allowed. The judgment and order dated 30-1-1981 are set aside. The appel lants were on bail. They need not sur render. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .;