MOINUDDIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) All the above matters were heard together as all of them arose from the judgment and order dated 18-11-1980 passed in S.T. 106 of 1980 recorded by the IVth Additional Sessions Judge, Azamgarh. In the trial four persons, namely, Moinuddin, Ejaz Ahmad, Auddus and Ali Ahmad stood a charge under Section 302 and 302/34, I.P.C. and while Moinuddin was found guilty of an offence under Section 302, I.P.C. and was sentenced to life imprisonment, the other three were acquitted of the charges. Moinudin preferred Criminal Appeal No. 2628 of 1980 against the order of his conviction and sentence. The State preferred the Government Appeal No. 638 of 1981 against the order of the acquittal of the other three accused persons andthe complainant preferred the Criminal Revision No. 236 of 1981 for setting the order of the acquittal and for remanding the case to the trial Court. In fact the scope of this criminal revision was certainly narrow as in the revisional jurisdiction this Court could not have imposed a punishment even if it held the acquittal order to be bad in law. When the State has preferred the government appeal against acquittal, not only the propriety of the order of the acquittal was open to be decided, the Court had also the right to impose a sentence if it found the concerned respondents guilty of an offence. The revision application was really not contested and the order in the government appeal would cover the grievance of the complainant.

(2.) The prosecution case was initiated upon an F.I.R. lodged by Mohammad Ismail at Phoolpur out post of district Azamgarh on 5-1-80 at about 1.45 P.M. He named all the four accused persons in his F.I.R. for an incident which had allegedly taken place at about 12.30 P.M. on that very day. The place of the occurrence was village Tewnga, three kilometers away from the police out post. Mohammad Ismail stated in his F.I.R. that the accused Moinuddin was his neighbour and there was an old enmity between Moinuddin and Abdul Rasheed, son of the complainant. On 5-1-80 the deceased Abdul Rasheed was taking his meal while sitting on a charpai on the verandah of their house the complainant and two other persons namely, Mumtaz and Fazlur Rahman were also there on another charpai and they were talking amongst themselves. The deceased was facing the other three persons. It was at about 12.30 in the afternoon. A grandson of the complainant namely Minhaz was taking his bath near a hand pump outside the house near this verandah. Moinuddin and the other three persons came there and immediately Moinuddin shot at Abdul Rasheed on instigation by the other three persons. After firing, they left the place almost immediately. The deceased jumped towards the assailant but fell down on the ground. He was carried back to the verandah where he breathed his last. The report was written by one Abdul Jais on the dictation of the complainant and investigation was taken up.

(3.) Postmortem examination of the deceased indicated that the postmortem examination was done at about 11.30 a.m. on 6-1-80 and rigor mortis was present in both upper and lower extremities. There as a gun shot wound of Entry 3 cm x 3 cm x chest cavity deep on the right side of chest 17 cm. below the right mid auxiliary line. Scorching, tattooing and blackening were present on the skin surrounding the wound. The right side of the chest wall was punctured. The ninth rib on the right side was fractured just below the wound site. Four metallic bullets and one piece of cork were found on the left side of chest cavity. The pericardium and the heart were found punctured. Semi-digested food was also found in the stomach.