NASIR Vs. STATE OF U P

JUDGEMENT

(1.) The present criminal appeal has been preferred by the appellants against the judgment and order dated 16/5/1980 passed by the III AddI. Sessions Judge, Pratapgarh convicting the appellants u/sec. 302/34 IPC and sentencing each of them to Imprisonment for Life. Accused Nasir was further convicted u/Sec. 323 IPC for six months R.I. and accused Tarif was convicted u/Sec. 323/34 IPC for 6 months R.I. also. Both the aforesaid sentences were directed run concurrently.

(2.) Initially, two more persons alongwith the appellants were prosecuted in this case. It is alleged that the incident took place in village Sarai Bhimsen, H/o Jahanpur, P.S. Jethwara, District Pratapgarh, on 9/4/1979 at about 4.00 p.m. Accused Mohd. Hanif and Mohd. Ali who were acquitted are real brothers. Accused Tarif is the son of Mohd. Hanifand Nasir is son of Mohd. Ali. On the other hand Smt. Hajara Begum complainant is the wife of Siddiq who is real brother of deceased Tajammul Husain. It is said that Siddiq used to work in Bombay and Tajammul Husain (deceased) as well as Smt. Hajara Begum used to live in the village. It is further alleged that about four months before this incident, a case u/Sec. 107 Cr. P.C. was fought between the parties. It is not disputed that there was an enmity between the members of two families. It is said that on the date of the incident at about 4 p.m. she-goats of Mohd. Ali accused entered into the Khalihan of Smt. Hajara Begum and started eating the thrashed Arhar crop of Smt. Hajara Begum. It is also alleged that two bullocks of Mohd. Hanif went inside her paddy field and started grazing. Smt. Hajara Begum then made a complaint but the accused persons abused her and refused to drive away their cattk:jn the meantime, Tajammul Husain reached there and he drove away the she- goats and proceeded to drive away the bullocks from the paddy field by Smt. Hajara Begum. It is said that as soon as he covered 20-25 steps, four accused persons namely; Mohd. Ali armed with spear, Mohd. Hanif armed with Farsa & the present appellants armed with lathis reached there and on the institution of accused Mohd. Hanif, they all started assaulting Tajammul Husain with their respective weapons. Smt. Hajara Begum raised an alarm and tried to save Tajainmul Husain but accused Nasir also assaulted her with lathi. It is said that on hearing the alarm, the other persons of the village reached there and on their intervention the accused persons ran away. As Tajammul Husain received serious injuries, therefore, the villagers started making preparation to take Tajammul Husain to hospital. On the other hand Smt. Hajara Begum got a report (Ext. Ka-1) prepared by Basant Bahadur Singh, P.W. 2, and went to the Police Station Jethware, where she lodged it on the same date at 8.15 p.m. On receipt of the said report, constable moharrir Server Husain prepared a chik report Ext. Ka-16 and registered the case in the G.D. Ext. Ka-17. On the other side, the witnesses after making arrangement for a conveyance, took Tajammul Husain to PHC Mandhata. It is said that Tajammul Husain reached the Hospital at about 10.00 p.m. where his injuries could not be examined due to poor light and it is said that he died in the PHC Mandhata at about 3.45 a.m. One Dr. I.P.S. Chauhan sent a report Ext. Ka. 3 to P.S. Mandhata about the death of Tajammul Husain. P.W. 9 O.P. Tripathi, S.I. was not present at the time oflodging of the F.I.R. and he received the papers of this case on 10/4/1979 at 5 a.m. in village-Sarai Indrawat. On receipt of wire-less message from P.S. Mandhata about the death of Tajammul Husain, the case was also converted under Section 302 IPC at P.S. Jethwara. The Investigating Officer, reached PHC Mandhata and prepared the inquest report of the dead body (Ext. Ka-4) as well as the other relevant papers Exts. Ka-6 to Ka-10. On the same date at 3.30 pm. the Investigating Officer reached the place of the incident and interrogated Smt. Hajara Begum, Imam Ali, Ibrahim and other witnesses and he prepared the site plan Ext. Ka-11, and took sample of blood stained and plain earth from the place of the incident. P.W. 7 Dr. R.C. Joshi examined the injuries of Smt. Hajara Begum on 10/4/1979 at 11.30 a.m. No mark of exterpal injury was found on her body. The doctor prepared the injury report Ext. Ka-4. P.W. 6 Dr. O.P. Shama conducted the autopsy on the dead body of Tajammal Husain on 11/4/1979 at 11.45 p.m. vide post mortem report Ext. Ka-2. The doctor found the following antemortem injuries on the dead body of deceased Tajammul Husain:-,

(3.) On the other hand, the accused denied the prosecution case and stated that Tajammul Husain was assaulted in darkness at some other place and they have been falsely implicated in this case due to enmity.