STATE OF U.P. Vs. NOOR MOHD

JUDGEMENT

(1.) This appeal has been filed by the State of U.P. with a prayer to grant leave to appeal against the judgment and order dated 26.3.2004 passed by the learned Additional Sessions Judge/F.T.C. Jalaun at Orai in S.T. No. 181 of 2001 whereby O.P. Noor Mohammad has been acquitted for the offence punishable under Sec. 307 read with Sec. 34 I.P. C and Sec. 506 I.P.C.

(2.) It is contended by the learned A.G.A. that in this case co -accused Naushad Ahmad has been convicted for the offence punishable under Sec. 307 I.P.C. According to the prosecution version the co -accused Naushad Ahmad discharged shots by his gun which caused injury to the injured Sameer, O.P. Noor Mohammad discharged shot by his country made pistol, which caused injury on the person of the injured Firoz Khan. Specific allegation of causing injury to a particular injured has been made to the accused person in the F.I.R. During the trial, it has been stated by the injured Firoz Khan that the shot discharged by Noor Mohammad hit on his person. According to the medical examination report the injured Firoz Khan had sustained three injuries caused by firearm. It is specific case of the prosecution that the co -accused Naushad discharged shot by his gun causing injury to the inured Sameer, and the O.P. Noor Mohammad discharged shot by his country made pistol, causing injury to the injured Firoz Khan but the trial court has misread the evidence by mentioning in para 20 of the judgment that the co -accused Naushad discharged shots by rifle causing injury to the injured Sameer, its pellets also caused injury to the injured Firoz Khan whereas no such statement has been given by any witness but the trial court has acquitted O.P. only on the basis of conjuncture and surmises. The co -accused Naushad has been convicted, who has filed criminal appeal No. 1835 of 2004, therefore, the impugned judgment dated 26.3.2004 acquitting the opposite party Noor Mohammad may be set aside.

(3.) Considering the facts and circumstances of the case, submissions made by the learned A.G.A. it appears that it is a case in which the alleged occurrence has taken place at 8.00 a.m. on 16.5.2004, it has been specifically alleged that the shot discharged by the accused Noor Mohammad hit the injured Firoz Khan, the injured Firoz sustained three injuries caused by firearm. According to the prosecution version the injuries were caused by the co -accused Naushad to the injured Sameer by using his gun but the trial court has considered the case of the co -accused Naushad that he was having rifle who discharged shot at the injured Sameer, the pellets of this shot caused injury on the person of the injured Firoz also whereas no such statement has been given by any witness. It is a case of misreading of the evidence also. The co -accused has been convicted, who has filed a criminal appeal before this Court and the same is pending, therefore, we feel it proper that the finding recorded by the trial court acquitting O.P. Noor Mohammad requires re -consideration, therefore, leave to appeal is granted.