HAFIZ Vs. STATE OF U P

JUDGEMENT

(1.) These two appeals arising out of a common judgment and order dated 26.8.2003 passed by the High Court of Judicature at allahabad in Crl. A. No. 1795 of 1981 were taken up for hearing together and are being disposed of by this common judgment. Criminal Appeal No. 263 of 2004 is by Accused No. 1 and criminal Appeal No. 1163 of 2004 is by the State.

(2.) The incident occurred at about 7 P. M. on 28.10. 1976 wherein Abdul Rahman, deceased, was said to have been killed by the accused persons, viz. , Hafiz, Rafiq, Sharif and lal Mohammed (the Appellant in Criminal appeal No. 263 of 2004 and Respondents 2 to 4 in Criminal Appeal No. 1163 of 2004). Hafiz, Rafiq and Sharif are brothers. Lal mohammad is their cousin. The deceased (Abdul Rahman) and his brother Suleman, PW-1 were residents of village Khitauli. Indisputably, the fields of the deceased and the accused are adjacent to each other being divided by a water channel. The said water channel is connected with one Mohanpur Branch canal. The irrigation of the agricultural lands of both the parties used to be done through the said canal. Allegedly, 2-3 days prior to the occurrence, altercations had taken place between the accused persons and the deceased as regard taking of water from the said canal for irrigational purpose. As the deceased allegedly had taken water from the canal for making his field ploughable, the accused persons objected thereto.

(3.) At about 7 P. M. on 28.10. 1976, PW-1 accompanied by the deceased went to their field allegedly for checking as to whether the same had become ploughable. The accused armed with lathies are stated to have come to the field. It is further stated that the accused had asked the deceased as to why he had taken water from the canal as a result whereof the channel of the canal was allegedly broken resulting in stoppage of flowing of the water to their field. Stating they would not leave him alive, lathi blows were inflicted on him. PW-1 raised alarm whereupon Ghasi Khan PW-2 and darab Khan, PW-3 came to the spot but when an attempt was made by them to save the deceased they were threatened and chased away by the accused persons. They ran towards the village leaving the deceased in the field. A first Information Report was lodged at about 9. 05 P. M. on the same date. Allegedly, the body of the deceased was brought in a tractor by the accused persons themselves accompanied by 16-17 persons whereupon they were arrested.