MUSTAQ Vs. STATE OF U P

JUDGEMENT

(1.) The instant criminal appeal has been preferred by Mustaq, accused-appellant, against the judgment and order dated 03.09.1986, passed by III-Additional Sessions Judge, Allahabad, in S.T. No.172 of 1983 (State of UP vs. Mushtaq Ahmad) under Sections 302 and 307 IPC, Police Station Shahganj, District Allahabad, by which he has been convicted and sentenced to undergo life imprisonment for the offence under Section 302 IPC and to pay Rs.1000/- as fine to the State Government, seven years rigorous imprisonment and fine of Rs.5000/- for the offence under Section 307 IPC and in default of payment of fine to undergo one year's additional rigorous imprisonment.

(2.) Brief facts of the case are that on the basis of an oral complaint made by Kalim Ullah, P.W.1, on 20/21.12.1982 at about 4:30 a.m., a case under Sections 302, 307 and 324 was registered at Police Station Shahganj, District Allahabad, against the appellant, which was scribed by Head Constable, Bharat Upadhyay, P.W.7.

(3.) In the written complaint, it was stated that the appellant was closely related to Kalim Ullah @ Iqbal Ahmed, the informant (P.W.1). The grand-father of the accused-appellant and the informant were real brothers. The residence of the appellant and the informant was in the same place. In a family partition, which had taken place about 18 years back, the house was divided into two parts and a partition wall was raised. The families of the informant as well as accused were carrying on bakery business. The business of the informant was flourishing while that of the accused was suffering huge losses, therefore, the appellant had become inimical towards him. On account of that, some dispute had taken place between the appellant and Wasi Ullah @ Mehtab Ahmed (PW2), brother of the informant. On the fateful night of 20/21.12.1982, the deceased Smt. Kaniz Fatima along with her daughters, namely, Km. Anjum Arah, Km. Husna Arah and Km. Roshan Arah were sleeping in a room on the second floor of the house. The informant and his brother Wasi Ullah, P.W.2 as also Gulzar Ahmed were sleeping in the same house in a room on the first floor of the house. At about 3:45 a.m., it is alleged that the accused-appellant scaled over the partition wall and entered into the house of the informant. Smt. Kaniz Fatima, the deceased, was awakened and when she objected the accused-appellant, attacked her with a dagger. When Km. Anjum Ara came to the rescue of her mother, she was also attacked by the appellant. In the meantime, on the hue and cry raised by the deceased and her daughters, the informant and his brothers were also awakened and they rushed up to the second floor and on reaching there, they saw the appellant was attacking the deceased with a dagger and had inflicted one injury on her arm in their presence and thereafter she had fallen down. When the informant tried to stop the appellant, he was also attacked by the appellant and in the process received injuries on his chest and arm. Although, Kalim Ullah, informant, caught hold of the accused-appellant but still the appellant managed to inflict injuries on the other brother of the informant Gulzar Ahmed @ Munna also, however, his brother did not let the appellant go free. The appellant also bit the nose of the informant with his teeth. Wasi Ullah (PW2), the third brother of the informant also received some injuries while holding the appellant. In the scuffle, the appellant also apart from the chest and arm received injuries on his arm and his eye-brows. The appellant, however, could not escape from the clutches of the informant and his brothers. The dagger, which he had used in the incident, was snatched from him by the informant and his brothers. Smt. Kaniz Fatima died on the spot. Kalim Ullah, the informant and his brother Wasi Ullah, P.W.2 brought the appellant to the police station and the blood-stained dagger was taken into custody by the police officials. The case against the appellant was registered. Fard of taking possession of the blood-stained dagger (Ex.Ka3), fard for taking blood-stained clothes of the complainant and his brother and fard for taking blood stained clothes of the appellant Mustaq Ahmed, were prepared at the police station by Head Constable Bharat Upadhyaya. Thereafter, the injured Km. Anjum Arah and Gulzar were also called from their residence and all the injured including the accused-appellant were sent to Moti Lal Nehru Hospital, Allahabad, for examination of their injuries. Their injuries were examined by Dr. Sunil Varma, P.W.9, who prepared their injury reports. Sub-Inspector Ram Singh Tiwari, P.W.8, the then SHO, Shahganj, Allahabad started the investigation. He reached the place of occurrence and conducted inquest over the dead-body of Kaniz Fatima and prepared the inquest report. He got the dead body sealed and sent for postmortem examination. He also recorded the statements of witnesses. He inspected a 60 wt. electric bulb, which had lit the place of occurrence and handed it over into the supurdagi of Kalim Ullah and prepared supurdagi memo (Ex.Ka21). The Investigating Officer prepared the recovery memo of blood-stained and plain pieces of cement (Ex.Ka19). He, after completing the investigation, submitted charge sheet against the accused-appellant.