STATE Vs. MUKHTAR AHMED

JUDGEMENT

(1.) MAITHLI Sharan, J. The Stale has preferred this appeal against the order of conviction and sentence dated 30-11-1978, passed by Sri B. P. Srivastava, III Addl. Sessions Judge, Pratapgarh in ST. No. 145 of 1977, acquitting all the four respondents for the offences under Sec tions 302, 302 read with Section 34, IPC, 307 and 307 read with Section 34 IPC. One of the four accused-respondents, namely, accused-respondent Mukhtar Ahmad has expired after filing of this appeal by the State, hence it has abated as against him.

(2.) THE prosecution story, in brief, is that informant Murtaza Hussain PW-3 was resident of Bachhrauli, Police Station Kunda, district Pratapgarh and all the four accused persons were also resident of the same village, and that they all were known to each other. THE deceased accused-respondent Mukhtar Ahmad and the respondent Sanaullah were real brothers, and accused-respondent Mukhlar Ahmad and Mohammad Wasi were gun licensees. THE incident occurred on 8-6-1977 at about 6. 00 p. m. when PW-3 Murtaza Hus sain was sitting at the door alongwith his father Iqramuddin, his younger brother Mustafa Hussain and other persons were also sitting nearby. According to the prosecution a quarrel had started between accused-respondent Mukhtar Ahmad and one Jawad Hussain (PW-4) in regard to a drain in front of the door of one Liyaqat-Ullah. On hearing the noise of the quarrel the informant Murtaza Hussain PW-3 and other persons sitting nearby rushed to the scene of occurrence. Meanwhile, accused respondent Mukhtar Ahmad had brought his licensed gun; accused-respondent Sanahullah was armed with country made pistol, accused Altaf Hussain was empty handed. Accused Mohammad Wasi and Altaf Hussain instigated the other two ac cused to kill Jawad PW-4 and then ac cused Mukhtar Ahmad fired his gun which hit Iqramuddin, father of Murtaza Hus sain (T W-3); he fell down and expired in stantaneously. Accused-respondent Sana hullah had also fired his country made pistol which injured Mohammad Rafiq and others. Afterwards the accused-respondents fled away from the place of occurrence.

(3.) SO far as the factum of the occur rence in which two persons died and others injured is concerned, it is the ad mitted position that such an incident did occur and the persons named in the first information report did receive injuries. However, the place and the manner of occurrence is disputed. Thus, the point for consideration now boils down to this much only, as to whether the prosecution could prove its case beyond doubt that the occurrence h;d occurred in the manner it had been brought by it. True, though the accused-respondents had brought the fac tum of self- defence in their statements u/s. 323, Cr. P. C. and had pleaded that the place and the manner of occurrence were different, but it is immaterial if they did not adduce any evidence to that effect to establish their case, as the legal position is very much settled that the prosecution has to prove its case beyond all shadow of doubts, and it cannot take advantage of any weakness of the defence version.