MOHD ZEESHAN Vs. STATE OF U P

JUDGEMENT

(1.) This is a criminal appeal against the judgment and order dated 4th August, 1978 passed by the then learned Vth Additional Sessions Judge, Moradabad, in Sessions Trial No. 183 of 1978 (State v. Mohd. Zeeshan and Ors.) whereby he acquitted the accused Irfan of all the charges levelled against him, but convicted the Appellants-accused Mohd. Zeeshan under Sections 302, I.P.C, 324, I.P.C. and 232 read with Section 34. I.P.C. and convicted him to imprisonment for life, two years rigorous imprisonment and to fine of Rs. 1000 respectively thereunder and in default to pay the fine to undergo rigorous imprisonment for one month. He directed that the sentences under Sections 302 and 324, I.P.C. shall run concurrently. He convicted the Appellant No. 2 Mohd. Furqan under Section 323, I.P.C. and sentenced him to a fine of Rs. 1000 and in default of payment of fine to undergo imprisonment for one month and convicted the Appellant-accused No. 3 Margoob under Section 25 of the Arms Act and sentenced him to imprisonment for 3 months and a fine of Rs. 1000 under Sections 323/34, I.P.C. and in default of payment of fine to undergo rigorous imprisonment for one month.

(2.) The prosecution case briefly stated is that the informant Mohd. Rizwan (P.W. 1) is a resident of Mohalla Kisrauli Baradari, police station Kotwali, district Moradabad. There was litigation going on between the informant Mohd. Rizvan and certain others, on one side and the accused Mohd. Zeeshan and others, on the other. Consequently Mohd. Zeeshan and others bore grudge against them. Mohd. Zeeshan and Irfan had beaten him in the past. Consequently he (Mohd. Rizvan) lodged a report with the police station. It is alleged that on 13th December, 1977 at about 10 a.m. Mohd. Rizvan was sitting at the main door of his house and that Mohd. Zeeshan, Mohd. Furqan and Irfan Khan resident of Mohalla Baradari Margoob, resident of Mohalla Bara Shahsafa came there. Mohd. Furqan had a Danda in his hand. Seeing Mohd. Rizvan, the accused Mohd. Zeeshan abused him, exhorted others to kill him and expressed that he (Mohd. Rizvan) was very litigious. Consequently the accused Furqan started beating him with the Danda. He raised alarm, hearing which his (Rizvan's) brother Mohd. Toran alias Gora happened to come out of the house, Hadi Hasan, son of Mehdi Hasan, resident of Mohalla Pheelkhan, Mohammad Ali Road, Akhtar Husain and Dilyad Husain, residents of Mohalla Baradari and certain others also reached there, Mohd. Zeeshan whipped out a knife and caused a knife injury at the abdomen of Mohd. Toran. Mashqoor rushed to save Mohd. Toran and started catching hold of Zeeshan. In the meantime Zeeshan assaulted with the knife at the neck of Mashqoor. Having received Injuries Mohd. Toran and Mashqoor both fell down. Mohd. Rizvan and others tried to apprehend them. In the meantime, Margoob fired from a country made pistol. But the fire shot got missed. They started running away. But Mohd. Rizvan and others apprehended Margoob with country made pistol and Mohd. Furqan with Danda. Mohd. Zeeshan and Irfan fled away. The condition of Mohd. Toran and Mashqoor was critical and therefore, they were sent to the hospital.

(3.) Dr. D.P. Bahuguna (P.W. 4) medically examined Mohd. Toran on 13th December, 1977 at 10.30 a.m. and found an incised wound 10 cm x 4 cm x abdomen cavity deep on the left side abdomen 4 cm. He prepared the injury report Ext. K-5 in respect of the same. Dr. Bahuguna also medically examined Mashqoor Ahmad at 10.35 a.m. and found lacerated wound 4 cm. x 1 cm depth not probed on the left side neck outer part 3.5 cm below outer to the chin. He prepared the injury report Ex. Ka-6 in respect of the same. Mohd. Furqan and Margoob were taken to the police station with the country made pistol and Danda snatched away respectively from them. Mohd. Rizvan (P.W. 1) made an oral report at the police station about the incident. On that basis the then head constable Jagdamba Prasad (P.W. 8) prepared a chick report and ultimately registered a case against the accused. On 13th December, 1977 at 12.05 p.m. the then Executive Magistrate, M.S. Raizada (P.W. 6) had recorded the dying declaration Ext. Ka-4 of Mohd. Toran, who ultimately died on 16th December, 1977 in the hospital. The then sub-Inspector Hari Singh held inquest on the dead body of Mohd. Toran and prepared the inquest report Ext. Ka-18. He observed the necessary formalities in connection therewith. He seized, sealed and sent the dead body of Mohd. Toran through constable Chandrapal (P.W. 10) and constable Gajraj Saran to the mortuary for post mortem examination.