ZULFIKAR KHAN ALIAS BHUTTU Vs. STATE

JUDGEMENT

(1.) R. D. Shukla, J. This is an appeal against the judgment and order dated 30-1-1981 passed by IV Additional Sessions Judge, Hardoi convicting appellants Zul fikar Khan, Mashuq Khan and Laddan under Sections 147, 302/149, I. P. C. and sentencing each of them to imprisonment for life under Sections 302/149, I. P. C. and one year's rigorous imprisonment of each accused under Section 147, I. P. C. Accused appellant Wasim Khan has been convicted under Sections 148 and 302, I. P. C. and under Section 25 of the Arms Act. He has been sentenced to undergo imprisonment for life under Section 302, I. P. C, two years' Rigorous Imprisonment for the offence under Section 148, I. P. C. and one year's Rigorous Imprisonment for the offence under Section 25 of the Arms Act. All the sentences against the accused appellants have been ordered to run concurrently.

(2.) THE First Information Report was lodged orally at police station Shahabad, District Hardoi on 24-8- 1979 at 3. 30 p. m. for the offence of the same day at about 12 in the afternoon naming six accused, namely Zulfikar Khan, Mashuq Khan, Wasim Khan, Nazir Khan, Manphul and Laddan on the ground that one Bashir used to run a flour mill in the partnership in village Magiyawan. THEre is a tube-well of Bashir near the said flour mill. It was about 8 a. m. when Altaf, son-in-law of Bashir informant slapped Laddan who was servant of Zulfikar Khan and used to stay at the said flour mill. He wanted Altaf to start the tube-well but Altaf refused to do so. Laddan become angry and said that Altaf and his father-in-law Bashir used to take half share from the flour mill for no work. Altaf also became angry and he slapped Laddan who went away saying that he would take revenge. Sabir, son of Bashir had also reached there. He tried to pacify the matter but Laddan left for Shahabad in angry frame of mind. It was about 12 in the after-noon when Laddan with his Master Zulfikar Khan, Mashuq Khan, Wasim Khan, Nazir and Manphul reached at the said flour mill. Laddan called the inform ant. He asked for the presence of Sabir and Altaf at the flour mill to settle the dispute. THEy all went there. Sabir and Altaf were armed with 'lathis'. Laddan started talk ing heatedly. Bashir tried to pacify the matter but Laddan was unrelenting. Sabir also requested with folded hands to pacify the matter. In the meantime Shakir son of Bashir, Shrikrishna, Balvan, Vasil Khan and Basant also reached there. Mashuq caught hold Sabir by his neck. Zulfikar exhorted and then Wasim fired at Sabir with his country-made pistol. Sabir fell down. THEreafter the accused tried to run away but the informant and others sur rounded them and after inflicting 'lathi' injuries arrested Wasim and Zulfikar at the place of occurrence. Mashuq Khan, Laddan, Nazir and Manphul ran away. Mashuq was also injured. Sabir died in stantaneously. Wasim and his country-made pistol alongwith Zulfikar were left in the custody of Chaukidar and Bashir went to lodge the F. I. R. THE case was registered. Investigation followed. THE dead-body of Sabir was sent for post- mortem report on the record found fire-arm wound of entry on the back of left shoulder. Injury No. 2 was lacerated wound on the lower hip and injury No. 3 was abrasion on the right side of face. On the side of accused Zulfikar, Wasim and Mashuq were medically ex amined on 24-8-1979 between 9. 45 p. m. to 10. 35 p. m. THEse accused had injuries on their person. Mashuq had one punctured wound on the back and upper part of the right fore-arm. THE F. I. R. did not allege that any one had a weapon at the time of occurrence which could cause this punc tured wound. THEse three accused had also suffered injuries. THEir injuries were ex plained in the F. I. R. After completion of the investigation the accused were charge-sheeted. During the trial evidence of P. W. 1 Bashir Khan, P. W. 2 Altaf and P. W. 3 Balvan had been recorded. P. W. 4 Dr. S. C. Vaish proved the injuries of the three accused noted above. He stated that punctured wound of accused Mashuq could be caused by his failing on a pointed piece of wood. P. W. 5 Dr. A. N. Singh proved the post mortem report of the deceased. P. W. 6 constable Surendra Pratap Singh recorded the F. I. R. and G. D. entries on its basis. P. W. 7 Lallu Singh was the Investigating Officer of this case. This was the prosecution evidence on the record. THE accused denied the charges but alleged in their statements that there was a dispute in ac counting of the flour mill. Altaf, Sabir, Shakir and Shabir started abusing them and Altaf had a country-made pistol/there was scuffle and accidentally country-made pistol was fired, resulting in the death of Sabir. THE accused did not examine any one in defence. This was the entire material on the record on the basis of which the learned trial Judge came to the conclusion regarding aforesaid guilt of the accused appellants resulting in their conviction and the present appeal. THE appeal has been contested on the ground that the trial Court failed to appreciate the evidence on the record reaching on incor rect conclusion regarding the guilt of the appellants.