MASITULLA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Raj Kumar Khanna and Sri Amber Khanna, for the appellants in both the appeals, Sri Anil Kumar Kushwaha, A.G.A., for State of U.P. and Sri Zafar Abbas, for the informant.

(2.) Masitulla has filed Criminal Appeal No. 4429 of 2013 and Malik Husain, Zakir, Nasir and Sazid have filed Criminal Appeal No. 4981 of 2013 from the judgment of Additional Session's Judge, Court No. 11, Moradabad, dated 26.09.2013, passed in S.T. No. 921 of 2009, State vs. Malik Husain and others and S.T. No. 439 of 2010, State vs. Asif, [arising out of Case Crime No. 309 of 2009, under Section 147, 148, 149, 452, 376, 302 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC')], police station Sambhal, district Sambhal, convicting and sentencing them, for one year rigorous imprisonment and fine of Rs. 5000/- each under Section 147 IPC, two years rigorous imprisonment and fine of Rs. 5000/- each under Section 148 IPC, five year rigorous imprisonment and fine of Rs. 5000/- each under Section 452 IPC and imprisonment for life and fine of Rs. 25000/- each under Section 302 IPC, with default stipulations. The appellants have been acquitted from the charge under Section 376 IPC and co-accused Asif has been acquitted from all the charges. Neither State of U.P. nor the informant has filed any appeal from the acquittal of the appellants and Asif, as mentioned above.

(3.) On the written complaint (Ex-Ka-1) of Mohd. Asif (PW-1), FIR (Ex-Ka-5) of Case Crime No. 309 of 2009 was registered under Section 147, 148, 149, 452, 376, 302 IPC, at P.S. Sambhal, district Moradabad on 01.06.2009 at 8:25 hours, by Head Moharrir Akhilesh Kumar (PW-4), against Malik, Zakir, Nasir, Sazid and Masitulla and two-three unnamed accused. It has been stated in the FIR that the mother-in-law of the informant owned two houses. Out of which, one house was forcibly occupied by Malik son of Muzaffar. Malik was intending to occupy the other house also. Hushna Ara, aged about 50 years, the mother-in-law and Chaman Fatma, aged about 14 years, the sister-in-law of the informant were living in a house. His mother-in-law had initiated proceeding against Malik and others, due to which Malik used to keep enmity with her. In the night of 31.05.2009/01.06.2009 at about 3:00 AM, Malik, Zakir, Nasir and Sazid sons of Muzaffar Husain, Masitulla son of Abdul Majid and two-three unknown persons, all residents of village Mandi Kishandas Sarai, police station Kotwali, Sambhal entered the house of Hushna Ara and Chaman Fatma with an intention to kill them, in the night. They took Chaman Fatma, aged about 14 years, his sister-in-law, in the room with an intention to commit rape and put of her salwar. Both the ladies were forcibly laid in the verandah of the house. On resistance by them, the accused assaulted both the ladies through iron rod, hammer, knife and stone etc. upon their head, mouth, neck and upper portion of the body. During this time, Safdar son of Zahid was going to attend the call of the nature, by that side. He heard the shrieks. Then he called Mohd. Naqib from his house in the village and taking him, they went to the main door of the house of the mother-in-law of the informant. Hearing the sound of their footstep on the main door, Malik and his friends began to flee away. In the light of petromax, kept in verandah, Mohd. Naqib and Safdar recognized Malik and his brothers Zakir, Nasir and Sazid and two-three other persons to whom they can recognize on coming before them. Any how, they broke open the doors and entered inside the house then found that the condition of Hushna Ara and Chaman Ara were very critical and the blood was spread over all the sides. On inquiry, the two ladies also informed the aforesaid facts and the names of the assailants. Both of them breathed last there before they could be brought to the hospital. Within short period, the neighbourers also reached the place of occurrence. After lodging report, appropriate legal action be taken.