State of U.P. vs Mohd.Jakaria and Others

Heard learned Counsel for the State.

This application u/s 378(3) Code of Criminal Procedure for grant of leave to appeal has been moved against judgment and order dated 30.04.2003 passed by learned Additional Sessions Judge, Pratapgarh in Sessions Trial No. 289 of 1994 whereby Respondents, namely, Mohd. Jakaria, Lukman, Mustaquim, Sirajul, Japharul, Mukhtar, Daud, Roshan, Qasim and Khursheed Ali have been acquitted of the charges levelled against them under Sections 147, 148, 307 & 302 Indian Penal Code.

We have gone through the judgment of the court below as well as lower court record.

It comes out that the accused-Respondents, namely, Quasim Ali, Mukhtar Ali and Khursheed, who were armed with country-made pistol, had fired upon the deceased Abad Ali while other accused-Respondents, who were armed with ballam and lathi, had given blows upon the deceased as well as upon Shamshul Qamar, Nabab Ali, Mohd. Abbas by their respective weapons and after committing murder of Abad Ali they fled away from the spot leaving behind, Mohd. Abbas (PW-1), Shamshul Qamar (PW-2) & Nabab Ali (PW-3) in an injured condition.

It has been submitted by learned Additional Govern Advocate that the judgment of the court below is based upon the findings arrived at on the basis of evidence led by the prosecution that the accused persons in excercise of right of private defence had opened fire and used weapons possessed by them.

We while going through the lower court record find in the statement of all the three above witnesses that they had deposed that when the accused persons reached the spot andstarted using their respective weapons, the deceased andinjured persons tried to flee away from the spot. Thus thetheory of right of private defence ends and thus benefit ofright of private defence given by the court below to theaccused persons is based upon wrong interpretation of law. Ithas also been argued that the testimony of three injuredwitnesses, who have been examined as PW-1, PW-2 & PW-3has fully supported the prosecution story but the same hasbeen ignored by the court below while acquitting the accused-Respondents.

We find force in the argument of learned Counsel for the State. Accordingly, the application is allowed and prayer for grantof leave to appeal is granted.