Mohammad Mian vs State Of U.P

1. This judgment will dispose of Criminal Appeal Nos.310 of 2006 and 282 of 2006. They arise out of the following facts:

2. Mohammad Mian, one of the appellants herein, was running a fair price shop in the outer portion of his house situated in village Ferozpur, District Bareilly. At about 7 a.m. on the 20th of April 1980 Iqrar Mohammad son of Firasat Husain PW-2 went to the fair price shop to buy sugar but Crl.Appeal No.310/2006 etc. 2 instead of supplying 2 kgs. of sugar as per the ration card, Mohammad Mian gave only 1 Kg. Firasat Husain then went to Mohammad Mian's shop and remonstrated with him and asked him as to why he had supplied only half the quantity of sugar that was due on his card. Mohammad Mian, however, abused him and told him that he would give only that quantity and he could take it or leave it as he wished. Mohammad Mian immediately thereafter fired a shot at Firasat Husain with his gun hitting him on his thigh and as he turned backwards Mohammad Mian's son, Zamir Mian, fired at him with a country made pistol hitting him on the upper right gluteal region on which Firasat Husain fell down on the ground. On hearing the sound of the firing, Riyasat Husain, father of Firasat Hussain went out of his house and moved in that direction and on seeing his son lying injured, he questioned Mohammad Mian which resulted in a quarrel between them. Mohammad Mian thereupon asked his sons Ahmad Mian and Shamim Mian to kill Riyasat Husain on which Ahmed Mian picked up a gun and Shamim Mian a country made pistol and rushed to the Crl.Appeal No.310/2006 etc. 3 roof of their house and as Riyasat Husain turned to move away, each of them fired a shot at him in quick succession on which he fell down. On hearing the sound of the firing, Sharafat Husain, PW-1 too left his house and proceeded towards the scene of occurrence. The incident was also witnessed by Sabir Husain, Mohd. Aslam, Rahat Husain and Summeri PW-3, who too were going to the shop for purchasing sugar. Sharafat Husain immediately went to his father who was lying in a precarious condition and gasping for breath and removed him to his house but he succumbed to his injuries within a short time. Firasat Husain, the injured was also brought from the place where he lay. Leaving his father's dead body and his injured brother in the family home, Sharafat Husain left for Police Station, Shahi at a distance of about 4 miles from village Ferozpur and lodged the FIR at 9.10 a.m. It is the case of the defence that the special report was delivered to the Magistrate the next day i.e. the 25th April, 1980. After receiving the information of the murder, Sub-Inspector Sri Nivas Sharma immediately reached village Ferozpur and made the necessary Crl.Appeal No.310/2006 etc. 4 inquiries and drew the inquest report. He also dispatched the dead body for the post-mortem examination. Firasat Husain was also sent to the District Hospital for treatment. The police officer also prepared the site plan and also collected blood stained earth from two places, one portion from the scene of occurrence and another from the house of the deceased where the dead body had been brought. Firasat Husain was medically examined by Dr. J.N. Bhargava at the District Hospital, Bareilly at 12.25 p.m. on the 24th April, 1980 with two injuries, one being a gun shot wound entry and the other its exit. Riyasat Husain's body was also subjected to a post-mortem examination at 2.30 p.m. on the 25th April, 1980, and nine injuries were found thereon, four gun shot wounds of entry and four of exit whereas the 9th was an abrasion. On an internal examination on the body, the humerus and a rib were found to be fractured on account of the gun shot injury. On the completion of the investigation, the accused i.e. Mohammad Mian and his sons Ahmad Mian, Shamim Mian and Zamir Mian were committed to the Court of Sessions for offences punishable under Section Crl.Appeal No.310/2006 etc. 5 302 and 307 of the IPC and as they pleaded not guilty, they were brought to trial.

3. The prosecution in support of its case, examined three eye witnesses, Sharafat Husain PW-1, Firasat Husain PW-2 and Summeri PW-3, Dr. J.N. Bhargava, PW-4 who had examined Firasat Husain for his injuries, Dr. K.S. Tiwari, PW- 5 who had conducted the autopsy on the dead body, PW-6 Sub-Inspector Srinivas Sharma the main investigating officer and PW-7 Head Constable Raghvendra Pal Singh who had recorded the F.I.R. and dispatched the special report to the Magistrate. The accused denied the allegations leveled against them and pleaded that they had been implicated in a false case.

4. The trial court on a consideration of the evidence (and while believing most of the prosecution story) held that the charge against the accused under Section 302/34 could not be made out as the medical evidence did not correspond to the ocular version. All the accused were acquitted of this charge. The trial court, however, held Mohammad Mian guilty for the Crl.Appeal No.310/2006 etc. 6 offence punishable under Section 307 of the IPC for having caused the gun shot injury on the person of Firasat Husain and sentenced him to 6 years R.I., but acquitted the other accused of that offence as well.

5. Aggrieved by the judgment aforesaid, the State preferred an appeal assailing the acquittal of the accused whereas the Mohammad Mian filed a separate appeal challenging his conviction and sentence under Section 307 of the IPC. The High Court acutely conscious of the fact that it was largely dealing with an appeal against acquittal and the limitations that went with it, re-appraised the evidence and observed that the three eye witnesses, particularly the injured Firasat Husain, could not be disbelieved. The Court noted that though in the FIR Sharafat Husain had not stated that he had witnessed the murder of his father, but the fact that the site plan had been prepared at his instance showing that he had witnessed the occurrence from near the `baithak' of Chhotey Crl.Appeal No.310/2006 etc. 7 Pradhan, he was indeed an eye witness to the murder. The Court observed that the distance between the house of the complainant party and the accused was only 60 or 70 paces (which would make it about 100 feet) and this short distance and the sequence of events that preceded the firing made it clear that Sharafat Husain too had witnessed the incident. The Court also found that after receiving the firearm injury, Firasat Husain had fallen at a distance of 10 feet from the fair price shop of Mohammad Mian and he was, therefore, in an apparent position to witness the fatal assault on his father. Likewise, the Court observed that PW-3 Summeri was a trust worthy witness as he too had seen the incident from the `baithak' of Chhotey Pradhan after being attracted by the altercation between Firasat Husain and Mohammad Mian. The Court finally concluded that the eye witness account could not be faulted in any manner. The High Court then dealt with the medical evidence vis-a-vis the ocular evidence and observed that as per the prosecution story the fatal shots had been fired at the deceased by Ahmad Mian and Shamim Mian from the Crl.Appeal No.310/2006 etc. 8 roof of the house which was about 10 feet in height. The Court observed that merely because the wounds of entry and exit were either parallel to each other or in one case the exit wound was slightly higher than the wound of entry would not detract from the other evidence as it could not be said with certainty as to the posture which the deceased and the assailants were applying when the shots had been fired. The Court also observed that the FIR had been lodged promptly and the special report also delivered within a reasonable time which testified to the truthfulness of the prosecution story. The Court, accordingly, set aside the order of the trial court acquitting Mohammad Mian, Ahmad Mian and Shamim Mian for the offence punishable under Section 302 read with Section 34 of the IPC and sentenced each of them to imprisonment for life. The Criminal Appeal filed by Mohammad Mian challenging his conviction under Section 307 was also dismissed. It was also directed that the sentence of the accused were to run concurrently. The two appeals Crl.Appeal No.310/2006 etc. 9 mentioned above have been filed impugning the judgment of the High Court.

Crl.Appeal No.310/2006 etc. 20 (6) Gun shot wound of exit 1.2 cm x 1.1. cm on front of chest left side upper part 4 cm above left nipple corresponding to injury No.2 margins everted.

(7) Gun shot wound of exit on left side chest 6.5 cm below left nipple corresponding to injury No.3, margins everted.

(8) Gun shot wound of exit 1.2 cm x 1 cm on front of chest left side 2.1 cm from midline and 19 cm from umbilicus corresponding to injury No.4, margins everted.

(9) Abrasion 2 cm x 2 cm on outer aspect of left buttock 10 cm below anterior superior iliac spine."