ASHIQ Vs. STATE OF U P

JUDGEMENT

(1.) The Third Additional Sessions Judge, Pilibhit has convicted Ashiq, Tahir, Aslam and Habib appellants under section 302 read with section 34 I.P.C. and sentenced them for imprisonment for life. Each of them have been further convicted under section 323 read with section 34 I.P.C. and sentenced to one yearTs rigorous imprisonment. Aggrieved by this order, the present appeal has been filed.

(2.) The case of the prosecution was that at about 9.00 P.M. on 25th September, 1917, Aslam appellant met Mahsoor, the nephew of the reporter Chhotey, near the crossing of Chakkiwala and told him that he will abduct the daughter of Juggi who resides as a tenant in the house of Khajan. Thereupon Mansoor said that it will not be proper for him to do so. An exchange of words had taken place in between the two. Mansoor came to his house and informed his father about the incident. At about 10.30 P.M. Ismail and Mansoor went to the house of Habib. At that place Asik, Aslam, Habib and Tahir were present. In the talk between them, hot exchange of words took place. Ashik had a Ballam Tahir had a Kulhadi (axe), Aslam had a Danda and Habib had a knife and they opened attack on Ismail. On hearing the alarm Zaibunnisa (P.W. 2) and Nanhey Khan arrived there. They tried to save. It was stated in this report that Ismail had snatched the knife of Habib and inflicted injuries on Ashiq and Tahir. After the occurrence, Ismail was taken to the hospital. where he was declared dead. A report of the occurrence was lodged at 11.15 P.M. the same day in the Police Station Kotwali of district Pilibhit. The investigation of the case was taken up by Umesh Chand Varma (P.W. 7) who was posted as Sub Inspector in the Police Station Kotwali at the time of occurrence. He had interrogated the witnesses and prepared site plan of the occurrence. Abdul Rahim had handed over a Kulhadi to him which was allegedly used as a weapon in the Occurrence and was left at the spot. This witness had conducted the inquest proceedings on 26.9.1977 and sent the dead body for post mortem. The charge-sheet had been submitted after completion of the investigation.

(3.) Dr. V.K. Agrawal (P.W. 3) had conducted the post mortem examination of the dead body at 4.15 P.M. on 26th September 1977. He had found one incised wound 6 c.m. x 1 cm x brain substance. The brain matter was visible through the wound on the top of head almost equally extending on both sides across the mid line 16 cm behind and above root of nose. Both parietal bone and membrane were clean cut under the injury. The brain substance was also cut underneath the injury. There was an a9rasion on the right side of abdomen and a punctured wound 2.0 cm x 1.0 cm x 4.0 cm deep on the right thigh. Dr. Ashok Kumar Yadav (P.W. 6) had examined the injuries of Smt. Zaibunnisa. He had found two contusions on left fore-arm and right lung.