STATE OF U P Vs. MOHAMMAD MIAN

JUDGEMENT

(1.) Since both the appeals have arisen out of the one and the same judgment dated 19th of November, 1981 passed by VI Additional Sessions Judge, Bareilly in Sessions Trial No. 436 of 1980 State Vs. Mohd. Mian & others, they have been taken up together and are being disposed of by one and the same judgment.

(2.) Government appeal has been filed on behalf of the State from the impugned judgment and order passed by VI Additional Sessions Judge, Bareilly in Sessions Trial aforesaid acquitting accused Zamir Mian, Ahmad Mian and Shamim Mian of the charge levelled against them under sections 302 and 307 each read with 34 IPC. Mohammad Mian was also acquitted of the charge levelled against him under Sec. 302 read with Sec. 34 IPC. However accused Mohammad Mian who was convicted by the Additional Sessions Judge under Sec. 307 Indian Penal Code and sentenced to undergo six years' rigorous imprisonment thereunder has filed criminal appeal.

(3.) Brief facts giving rise to these appeals are that at 9: 10 a.m. on 24th of April, 1980 Sharafat Husain handed over an FIR at police station Shahi situate at a distance of four miles from village Firozpur alleging that Zamir Mian, Ahmad Mian and Shamim Mian are sons of accused Mohammad Mian. Sharafat Husain and Firasat Husain are sons of Riyasat Husain. Mohammad Mian used to run a fair price shop in the outer portion of his house. At about 7: 00 a.m. that very morning Iqrar Mohammad son of Firasat Husain went to the fair price shop of Mohammad Mian to buy sugar who supplied him 1 kg sugar instead of 2 kgs against his ration card. Then Firasat Husain went to the shop of Mohammad Mian and asked him as to why he had supplied only 1 kg of sugar when he used to get 2 kgs of sugar on his ration card. Thereon Mohammad Mian started abusing him stating that he would provide only 1 kg of sugar and it was up to him to take the same or not which resulted in an altercation between them and immediately Mohammad Mian fired at Firasat Husain with his gun hitting him on his thigh and as he turned back Zamir Mian son of Mohammad Mian fired at him with country made pistol hitting him at his upper right gluteal region and sustaining the injuries he fell down. On hearing the sound of shots, Riyasat Husain went out of his house and proceeded towards the scene of occurrence. After seeing his son Firasat Hussain lying injured there he questioned Mohammad Mian as to why it was done which resulted in a brawl between them. Thereon Mohammad Mian asked his sons to kill Riyasat Husain and immediately Ahmad Mian taking gun and Shamim Mian with countrymade pistol went on the roof and as Riyasat Husain turned back both of them fired at him with their respective weapons in quick succession and sustaining the fatal injuries Riyasat Husain fell down 2- 3 paces ahead of Firasat Husain. On hearing the sound of several shots, Sharafat Husain went out of his house and proceeded towards the scene of occurrence. The said incident was witnessed by Sabir Husain, Mohd Aslam, Summeri, Rahat Husain and others who were going to the shop for purchasing sugar. Immediately Sharafat Husain went to his father Riyasat Husain who was lying in precarious condition and gasping. Then he with the help of others took his injured father to his house; but by that time he succumbed to the fatal injuries sustained by him. He kept the dead body of his father in the 'Dalan' of his house. In the meanwhile injured Firasat Husain was also brought from the place of occurrence.