HABIB Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellants herein were charge-sheeted for the offences punishable under Section 302 of the Indian Penal Code. The accused Habib was charge- sheeted under Section 302 IPC and the remaining two accused persons including Manuwa were charge-sheeted under Section 302 read with 34 IPC, however, Manuwa was also charge-sheeted under Section 307 IPC as well.

(2.) The trial court after appreciating the oral as well as documentary evidence acquitted all the accused persons vide its judgment dated 3.10.2008. Aggrieved by the said order the State preferred G.A. No.114 of 1982 before the High Court of judicature at Allahabad. The High Court, vide its judgment dated 23.3.2007 confirmed the acquittal of the accused Bhappa but acquittal of Habib and Manuwa was set aside. Habib was found guilty and convicted for the offences punishable under Section 302 IPC and accused Manuwa was convicted under Section 302 read with Section 34 IPC. Aggrieved by the said order Habib has filed Criminal Appeal No.911 of 2007 and Manuwa has filed Criminal Appeal No.915 of 2007.

(3.) The prosecution story is that Sammo, daughter of deceased Fakira and sister of Hamid (PW 1) - complainant was married to Habib, one of the accused. Sammo left the matrimonial home due to demand of dowry. Later PW 1 settled her marriage with another person but the nikah was not performed since no divorce was obtained from her husband accused Habib. The prosecution version is that on 13.1.1981 at about 6.30 PM PW 1 Hamid accompanied by his father Fakira (deceased), his brother Rafique, servant Ashraf and other person namely Kailash Chandra were proceeding to a place Goverdhan along with cattle through a canal road. The accused Manuwa, his son Habib, appellants herein, and his brother Bhappa met PW 1 and others on the way and enquired about their destination. PW 1 informed that they are going to Goverdhan for cattle business. On seeing them, accused Manuwa instigated his sons Habib and Bhappa to challenge PW 1 and others. Manuwa himself opened fire with a view to kill Fakira, but it did not hit Fakira, Habib also opened fire and shot Fakira at his neck and he fell down and died on the spot. PW1 Hamid lodged a report to the police station Goverdhan, Mathura on 13.1.1981 at about 8.45 PM. Thereafter a case Crime No.13 under Section 302 IPC was registered. The case was tried by the Sessions Judge, Mathura. Prosecution, in order to bring home the charge, examined PW 1 Hamid, the informant, PW 2 Rafique, brother of the deceased, PW 3 Kailash Chandra, eye-witness to the murder, PW 4 Radhey Shayam, head constable, PW 5 Ram Kheladi, constable, PW 6 Dr. K.K. Khanna, CMO of Mathura to prove the post-mortem report, prepared by Dr. K.K. Seth. PW 7 Brijpal Singh Investigating Officer and PW 8 Bankey Lal, constable. On the side of the defence, accused examined Abdul as DW1 and Rajendra Prasad Pandey as DW2.