FAQIRA Vs. STATE OF U.P.

JUDGEMENT

(1.) Three accused persons Faqira (appellant No. 1), Rawahil @ Rawshil (appellant No. 2) (real brothers being sons of Tehsin) and their cousin brother Furkan (appellant No. 3), son of Yamin, residents of Village Khandrawali, Police Station Kithaur, District Meerut, have preferred this criminal appeal by invoking criminal appellate jurisdiction of this Court under Section 374(2) Cr.P.C. against the judgment and order dated 26.4.1982 passed by Vth Additional Sessions Judge, Meerut, in Session Trial No. 72 of 1980-State Vs. Faqira and two others, relating to Crime No. 367 of 1979, under Sections 302/307 I.P.C., Police Station Kithaur, District Meerut, whereby the appellants were held guilty and convicted and sentenced to imprisonment for life under Section 302 I.P.C. read with Section 34 I.P.C., seven years Rigorous Imprisonment under Section 307 I.P.C. read with Section 34 I.P.C., and four years Rigorous Imprisonment under Section 458 I.P.C. All the sentences were directed to run concurrently. Thus, the appellants have challenged their conviction and sentence recorded vide impugned judgment and order dated 26.4.1982.

(2.) The story of the prosecution, as emerged from the written report (Ext. Ka-1) and the F.I.R. (Ext. Ka-3) lodged on its basis by first informant Samiullah Khan PW-1 and also from the evidence unfolded during trial, is that Zahoor Khan had two sons Tehsin and Yamin. Tehsin had further two sons namely, Faqira and Rawahil (accused persons). Yamin had also one son Furkan (accused). Deceased Allauddin was the father of the first informant Samiullah Khan PW-1. Before this incident of murder of deceased Allauddin son of Azimuddin, the deceased had lodged an F.I.R. at Crime No. 236 of 1979, under Sections 452/354 I.P.C. against the accused Faqira showing occurrence of 31.7.1979 at 2.30 P.M. at Police Station Kithaur, District Meerut (Ext. Ka-14). According to the F.I.R. (Ext. Ka-14), on the date of occurrence i.e. 31.7.1979 at 2.30 P.M. one Smt. Amna wife of Samiullah was alone at her house as the other family members had gone to offer Namaz, when the accused Fakira entered into the house and tried to outrage the modesty of Smt. Amna. On her cries, the male and female members reached there and caught Faqira. When the accused Faqira in order to get himself released took out a knife for assaulting, then he was beaten with sticks and Faqira was taken along with knife to the police station. Thereafter the deceased Allauddin had again lodged an F.I.R. against two accused persons Faqira and Rawahil at Crime No. 356 of 1979, under Section 380 I.P.C., Police Station Kithaur, District Meerut on 28.10.1979 showing occurrence of the intervening night of 27/28.10.1979 around mid night. The F.I.R. was lodged regarding theft of electric motor from the tube-well of deceased Allauddin. Thus, prior to this incident of murder, two F.I.Rs. against the accused persons had already been lodged by the deceased Allauddin and there was old enmity between the two sides. Thereafter proceedings under Section 107/116 Cr.P.C. were initiated against the accused Faqira.

(3.) The prosecution case further is that the first informant Samiullah, his father deceased Allauddin and his uncle Barsat Ali were sleeping inside the Verandah of their house. In the intervening night of 2/3.11.1979 around mid night hearing some commotion, they got up and saw that the accused persons Faqira, Rawahil and Furkan entered into the Gher/enclosure of the deceased Allauddin and challenged the deceased saying that he had lodged so many cases against them, hence they would immediately kill him. One unknown person accompanied them was holding lathi. At that time, the accused Faqira had a SBBL gun and accused persons Furkan and Rawahil each had country made pistols. The accused Faqira fired on the chest of the deceased Allauddin and on receiving firearm injury on his chest, the deceased Allauddin immediately died. Samiullah and his uncle Basarat Ali raised cries when two accused persons Rawahil and Furkan fired from their country made pistols towards them but the shots fire from the country made pistols did not hit anyone. The accused persons successfully managed to run away from the place of incident when they were seen by the witnesses Samiullah and Basarat Ali in the moon light and in the light of torches. Samiullah, the first informant dictated the written report (Ext. Ka-1) of the incident to scribe Istkhar Ahmad just after the incident and the same was scribed by the scribe which the first informant carried to the police station and handed over on 3.11.1979 at 7.30 A.M. after covering a distance of seven kilometers.