MOHD AYUB KHAN Vs. STATE OF U P

JUDGEMENT

(1.) These two appeal arise from the judgment dated 15-9-1978 of Sri. R.S. Mathur, the then 1st Additional District & Sessions Judge, Mainpuri, convicting the appellants Mohamed Ayub Khan, Kausar Khan, Mushtaq Ali Khan, Mohammed Sayeed and Shan Mohammed under Sections 148 and 307 read with Sec. 149 I.P.C. to one years Rigorous Imprisonment and 5 years Rigorous Imprisonment, respectively. The Government has preferred Criminal Appeal No. 3499 of 1978 against the acquittal of accused Shamshad Ali Khan and Qayum Ali Khan by the same judgment.

(2.) The facts of the case, in brief, are that the incident giving rise to the prosecution of the appellants took place on 6-2-1976 at 11 A.M. in village Kosma Musalmeen, Police Station Ghiror, District Mainpuri. Tehsildar Mainpuri was camping in the village and his camp was beside the house of the complainant Ishtiaq Ali Khan P.W.1, who along with his brother Ishraq Ali Khan was present there and on hearing some wrangle both of thcm came out of the camp and saw the appellants Mohammed Ayub Khan armed with a gun, Kausar Khan, Shamshad Ali, Mushtaq Ali, Qayum Ali Khan, Mohammed Sayeed Khan and Shan Mohammed armed with country made pistols, who were quarreling with Masroor Ali Khan P.W.4. The informant alongwith his brother Israq Ali Khan also reached there. On seeing Ishraq Ali Khan, Mohammed Ayub Khan shouted that he was also in the case and fired at Ishraq Ali Khan as a result of which he received pellet injuries. The other accused also fired with their weapons as a result of which Abdul Khalil Khan, Abdul Selim Khan, Masroor Ali Khan, Parsuram and his wife Smt. Ganga Devi and one Hayat Waris received injuries. The injured were taken to the Hospital at Mainpuri and thereafter a written report was submitted at police Station Kotwali Mainpuri on the same day at 4.55 P.M. on the basis of which a case was registered under Sections 148, 149 and 307 I.P.C. After investigation the accused were committed and at the trial they were charged under Sections 148 and 307/149 I.P.C.

(3.) To prove its case the prosecution in all examined 8 witnesses of whom P.W. 1 Ishtiaq Ali Khan, P.W.2 Ishraq Ali Khan, P.W.3 Parsuram and P.WA Masroor Ali arc the eye witnesses of the occurrence. P.W.5 Dr. Masood Hasan Khan had examined Ishraq Ali, Masroor Ali and Abdul Khalil at Jawahar Lal Medical College of Aligarh Muslim University where he was then posted as Reader and he deposed about their indoor bed head tickets as well as their X-ray plates etc. P.W.6 S.I. Gautam had investigated the case and deposed about the steps taken by him during the course of investigation P.W.8 Constable Jawahar Khan was posted at police Station Kotwali where the FJ.R. was received. He prepared the chik report and as the case related to police station Ghiror, he sent the papers there which were received by the clerk Constable Niwas Khan, who registerd the case at the police Station.