STATE OF UTTAR PRADESH Vs. RASID

JUDGEMENT

(1.) The respondents herein and two others were charged for offences punishable under Ss. 148, 452, 302 read with Ss. 149 and 307, I.P.C. for having committed the murder of one Nasir Ahmad son of Mohd. Siddiq, his wife Chheddan and his two years old son Ishtiyak in the house of Mohd. Siddiq (P.W. 2) and for causing grievous and other injuries to P.W. 2 Mohd. Siddiq, P.W. 3 Mukhtar Ahmad, Nasir Ahmad P.W. 11 and another by name Masroor. Learned Sessions Judge, Sitapur, Uttar Pradesh in Sessions Trial No. 371/1982 acquitted accused No. 6-Sadaqat and A-7 Liyaqat giving them the benefit of doubt and convicted other 15 persons for various offences punishable under S. 302 read with Ss. 149, 452, 307 read with S. 149, I.P.C. He sentenced the said accused for the principal offence punishable under S. 302 read with S. 149, I.P.C. to imprisonment for life and awarded varying sentences in regard to other offences. In appeal, the High Court of Judicature at Allahabad in Crl. Appeal No. 804 of 1983 allowed the same and set aside the conviction and sentence imposed on the appellants therein, consequently the State of U.P. is in appeal before us.

(2.) The prosecution case, in brief, is these respondents along with 2 other acquitted accused persons formed themselves into an unlawful assembly armed with deadly weapons like rifles, country made pistols, Gandasas and lathis went to the house of P.W. 2 on 20-2-1982 at about 9.30 a.m. with an intention of causing the death of deceased-Nisar Ahmed, and with the said intention while A-1 to A-8 entered the house of P.W. 2, other accused persons some of whom were also armed, surrounded the house, and out of those accused who entered the house, A-1 Yousuf, shot the deceased-Nisar Ahmad which injured him on his knee and he fell down. At that time, A-3 Rasid fired two shots which hit deceased-Chheddan and Ishtiyaq who fell down, thereafter, A-1 again fired simultaneously with A-5 Abdul Khaliq which hit P.Ws. 2, 3 and 11. It is the further case of the prosecution that thereafter A-4, A-7 and A-8 hit deceased-Nasir with lathis and pinned him down while A-2 cut Nasir's head with a Gandasa and took it with him while the other accused also left the house of P.W. 2. In this incident, Nasir and Chheddan succumbed to their injuries while Ishtiyaq, P.Ws. 2, 3, 4 and 11 got injured. The prosecution alleges that some other villagers also had seen the incident in question. The further case of the prosecution is that after the accused persons left, P.W. 2 left the place of the incident with a view to lodge a police complaint and on the way while passing through the colony of Hargaon he met one Liyaqat (not examined) and told him about the incident and requested him to write down a complaint which was done by said Liyaqat on which P.W. 2 put his thumb impression. He then took the report and went to the Police Station at Hargaon and handed over the same to the officer-in-charge of the Police Station who after registering a case sent P.W. 2 with a Constable to Hargaon Hospital where he was medically examined. The further case of the prosecution is that when P.W. 2 was being treated in the said hospital, the other wounded persons like P.Ws. 3 and 11 along with child Ishtiyaq were brought to the hospital by another Constable and were examined by the doctor. At that time the child Ishtiyaq was still alive and was advised by the doctors to be taken to Sitapur hospital, and on the way, he died and his dead body was taken to the Police Station where an inquest was held on the said dead body.In the meantime, the police had already reached the place of incident and the I.O. found the headless body of Nasir in the Angan of the house of P.W. 2 and he held an inquest on the said body. He then sent the dead bodies of Nasir and Chheddan with necessary instructions to the Medical Officer to conduct the post-mortem. He then directed his subordinates to search for the accused persons and he himself recorded the statement of P.W. 12 Rustam, P.W. 4 Masoom Ali and three others who have not been examined in the case. He also inspected the place of occurrence and found a partially woven durry, 4 broken teeth, blood stained empties of the cartridges, pellets etc. which he took into his possession after making a panchanama in regard to the same. He also collected blood stained and plain earth in separate containers from near the body of Nasir. Thereafter, he made search for the decapitated head of deceased-Nasir Ahmad but could not trace the same. It is the case of prosecution that the post-mortem of the dead bodies was done on 21-2-1982 by Dr. V. S. Bajpai P.W. 7 from 12 noon to 1.45 p.m. and the said post-mortem reports are marked as Ex. Ka-16A to 18. The prosecution then states that during the course of investigation, the accused persons were arrested, and based on the material gathered during the said investigation, the respondents were charged before the learned Sessions Judge as aforesaid.

(3.) Before the Sessions Court the prosecution has examined P.Ws. 2, 3, 4, 11 and 12 as eye-witnesses to the occurrence, P.W. 6 the doctor was examined to give evidence as to the injuries suffered by the deceased-Ishtiyaq, and other injured witnesses P.Ws. 2, 3, 11 and two other non-examined witnesses at the Primary Health Centre, Hargaon on 20-2-1982. P.W. 7 the doctor who conducted the post-mortem was examined in regard to his observations on the dead bodies of the deceased.