MOHAMMAD MIAN Vs. STATE OF UP

JUDGEMENT

(1.) This judgment will dispose of Criminal Appeal Nos. 310 of 2006 and 282 of 2006. They arise out of the following facts:

(2.) Mohammad Mian, one of the Appellants herein, was running a fair price shop in the outer portion of his house situated in village Ferozpur, District Bareilly. At about 7 a.m. on the 20th of April 1980 Iqrar Mohammad son of Firasat Husain PW-2 went to the fair price shop to buy sugar but instead of supplying 2 kgs. of sugar as per the ration card, Mohammad Mian gave only 1 Kg. Firasat Husain then went to Mohammad Mians shop and remonstrated with him and asked him as to why he had supplied only half the quantity of sugar that was due on his card. Mohammad Mian, however, abused him and told him that he would give only that quantity and he could take it or leave it as he wished. Mohammad Mian immediately thereafter fired a shot at Firasat Husain with his gun hitting him on his thigh and as he turned backwards Mohammad Mians son, Zamir Mian, fired at him with a country made pistol hitting him on the upper right gluteal region on which Firasat Husain fell down on the ground. On hearing the sound of the firing, Riyasat Husain, father of Firasat Hussain went out of his house and moved in that direction and on seeing his son lying injured, he questioned Mohammad Mian which resulted in a quarrel between them. Mohammad Mian thereupon asked his sons Ahmad Mian and Shamim Mian to kill Riyasat Husain on which Ahmed Mian picked up a gun and Shamim Mian a country made pistol and rushed to the roof of their house and as Riyasat Husain turned to move away, each of them fired a shot at him in quick succession on which he fell down. On hearing the sound of the firing, Sharafat Husain, PW-1 too left his house and proceeded towards the scene of occurrence. The incident was also witnessed by Sabir Husain, Mohd. Aslam, Rahat Husain and Summeri PW-3, who too were going to the shop for purchasing sugar. Sharafat Husain immediately went to his father who was lying in a precarious condition and gasping for breath and removed him to his house but he succumbed to his injuries within a short time. Firasat Husain, the injured was also brought from the place where he lay. Leaving his fathers dead body and his injured brother in the family home, Sharafat Husain left for Police Station, Shahi at a distance of about 4 miles from village Ferozpur and lodged the FIR at 9.10 a.m. It is the case of the defence that the special report was delivered to the Magistrate the next day i.e. the 25th April, 1980. After receiving the information of the murder, Sub-Inspector Sri Nivas Sharma immediately reached village Ferozpur and made the necessary inquiries and drew the inquest report. He also dispatched the dead body for the post-mortem examination. Firasat Husain was also sent to the District Hospital for treatment. The police officer also prepared the site plan and also collected blood stained earth from two places, one portion from the scene of occurrence and another from the house of the deceased where the dead body had been brought. Firasat Husain was medically examined by Dr. J.N. Bhargava at the District Hospital, Bareilly at 12.25 p.m. on the 24th April, 1980 with two injuries, one being a gun shot wound entry and the other its exit. Riyasat Husains body was also subjected to a post-mortem examination at 2.30 p.m. on the 25th April, 1980, and nine injuries were found thereon, four gun shot wounds of entry and four of exit whereas the 9th was an abrasion. On an internal examination on the body, the humerus and a rib were found to be fractured on account of the gun shot injury. On the completion of the investigation, the accused i.e. Mohammad Mian and his sons Ahmad Mian, Shamim Mian and Zamir Mian were committed to the Court of Sessions for offences punishable under Section 302 and 307 of the IPC and as they pleaded not guilty, they were brought to trial.

(3.) The prosecution in support of its case, examined three eye witnesses, Sharafat Husain PW-1, Firasat Husain PW-2 and Summeri PW-3, Dr. J.N. Bhargava, PW-4 who had examined Firasat Husain for his injuries, Dr. K.S. Tiwari, PW-5 who had conducted the autopsy on the dead body, PW-6 Sub-Inspector Srinivas Sharma the main investigating officer and PW-7 Head Constable Raghvendra Pal Singh who had recorded the F.I.R. and dispatched the special report to the Magistrate. The accused denied the allegations leveled against them and pleaded that they had been implicated in a false case.