MUSHTAQ Vs. STATE OF U P

JUDGEMENT

(1.) The above named appellants have preferred this appeal against the Judgment and Order dated 30.5.1979 passed by Sri. G.L. Tandon, the then Ivth Additional Sessions Judge, Moradabad, in S.T. No. 604 of 1978, whereby the appellant Mushtaq has been convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for 2 years. He has further been convicted under Ses;. 302 I.P.C. and Sec. 307/149 I.P.C. and sentenced to life imprisonment and for 5 years R.I. respectively. All other appellants except Mushtaq, have been convicted under Section 302/149 and 307/149 I.P.C. and each of them has been sentenced to undergo life imprisonment and 5 years. R.I. respectively. Appellants Chottey, Abrar, Husain, Ayyub, Asghar and Shahid have further been convicted under Sec. 148 I.P.C. and each of them has been sentenced to undergo 2 years rigorous imprisonment, while Zafeer, Rashid alias Rafiq, Abdul Hasan, Yusuf, Mohammed and Asad were convicted under Section 147 I.P.C. and sentenced to one year rigorous imprisonment each, with a further direction to run all the sentences concurrently.

(2.) The prosecution case, in brief, is that there was a dispute in respect of a drain in village Khaiya Mafi, police station Didauli, district Moradabad, between the accused on one hand and Bashir Dhobi on the other. The complainant party took side of Bashir Dhobi in that dispute. The accused persons belong to Ansari community. While the complainant party to Turk. At about 4.30 P.M. Aiwaz was ploughing his field at a distance of about 3 furlongs from the village abadi, when Rashid alias Rafiq and Mushtaq reached there and started abusing Aiwaz. On his protest, he was whacked with a danda by Mushtaq. On the outcry raised by Aiwaz, some village people had come and intervened. Thereafter Mushtaq and Rashid alias Rafiq left the field saying that they will see him in the village. On the fateful day i.e. 6.8.1978, when the complainant and others were sitting on a knoll of earth, Aiwaz, the nephew of the informant Raghib Husain, came there at about 5.30 P.M. and started narrating about the incident which had taken place at 4.30 P.M. in the field. Meanwhile, all the accused appellants also reached there. At that time appellants Mushtaq, Chottey, Abrar Husain Ayynb, Asghar and Shahid were armed with guns, while others were armed with lathis. Mushtaq slated the turk community and said in a raised voice to finish their progeny. In the meantime Irshad had also come from the field and entered the house of Sabir and started peeping through the door. Zafeer exhorted Mushtaq to shoot Irshad. Thereupon Mushtaq fired a shot which hit Irshad, as a result of which he fell down on the ground and died at the spot instantaneously. Thereafter the other accused who were armed with guns started firing indiscriminately and Yusuf who was armed with a lathi gave blows to Nanhey who also fell down. The witnesses present at the scene of incident screamed and then the accused persons left the venue. Due to firing by the accused persons, Sadat Hussain, Ale Hasan and Raghib Hussain sustained gun shot injuries, while Nanhey received lathi injuries. Raghib Husain scribed report of the incident and sent it to the police station Didauli. Along with injured persons, which was lodged to 7.45 P.M. on the same day.

(3.) M.S. Negi, Sub-Inspector (P.W. 5) wrote a Chitthi Majroobi and directed the injured persons to go to P.H.C. Joya for their medical examination. Thereafter, he left to the place of incident and reached there at 10.30 P.M. on 6.8.1978. There he prepared an inquest report next day in the morning as no proper source of light was available in the night. thereafter he prepared the site plan of the place of incident and recorded statements of the witnesses and after completing other necessary formalities, he submitted charge sheet in court against the accused appellants.