JUDGMENT

B.P. Singh, J. - NizamuddIn, Wahajuddin, Saifuddin and Hushmat have appealed against the judgment and order dated 3-9-1979 passed by VI Additional Sessions Judge, Allahabad in S.T. No. 298 of 1978 (State v. Nizamuddin and three others), P.S. Saini, District Allahabad.

2. The case of the prosecution may briefly be stated as follows:

3. Appellants Nizamuddin, Wahajuddin and Saifuddin are real brothers and the appellant Hushmat is their close associate. Hamiduddin P.W. 1, the first informant, and Ziauddin the injured and all these accused are residents of village Mithepur Sinyara, which lies within the local limits of P.S. Saini. There are two factions in the village. One faction is led by Hamiduddin P.W. 1 and his other association while the other faction is led by the accused Nizamuddin. There was long standing enmity between the two factions.

4. On 3-9-1977, it was about 7.00 A.M. when Ziauddin P.W. 2 was irrigating his field from the canal water which was passing through a water channel. Accused Nizamuddin armed with a pistol and accused Wahajuddin, Saifuddin and Hashmat armed with lathis suddenly came there. On being exhorted by his remaining three co-accused, Nizamuddin at once fired upon Ziauddin. Ziauddin sustained - gun shot wound in his stomach and right hand. Hamiduddin was also there. The. accused attempted to assault Hamiduddin but be managed to escape. On alarm being raised by Hamiduddin and Ziauddin, witnesses Nisar, Mir Mohammad and Azizuddin came there. One being challenged by the witnesses the accused went away. As the' condition of Ziauddin was serious, Hamiduddin and others took him to P.S. Saini. On his way to police station Saini Hamiduddin got a report Ext. Ka. 1 scribed by Sadruddin at the bus stop. The written report Ext. Ka. 1 was handed over to P.S. Saini where Head Constable Ramji Misra P.W. 4 had prepared the F.LR. Ext. Ka. 2 and also made G.D. entry Ext. Ka. 3 about the crime in question. Ziauddin P.W. 2 was sent from P.S. Saini to Government Hospital Sirathu where he was attended to and medically examined by Dr. Vinai Kumar Dwivedi the same day at 11.15 A.M.

5. Dr. Vinai Kumar Dwivedi PW-5 had found the following injuries upon the person of Ziauddin:

1. Wounds of entry - multiple present measuring 2 m.m. x 2 m.m. on the right side of the hypochondrium region, covering an area. 3-1/2" x 3-1(2". Blackening present Pellets are visible and some are traceable. No wound of exit present. Deepness of the wound cannot be traced without X-ray.

2. Two wounds of entry on the anterior surface of the right arm of the modella. Pellets are traceable not visible. Wound measuring 2 m.m. x 2 m.m. Scorching and tattooing present. No wound of exit present. Depth not traceable, for which X-ray is required.

3. There is blackening with superficial burning on the devolateral surface of the lower arm and upper force-arm in an area measuring 7-1/2" x 2-1/2".

6. In the opinion of Dr. Vinai Kumar Dwivedi PW-5 all the injuries of Ziauddin were caused by fire arm. The injuries were fresh and were kept under observation as X-ray was advised for injuries Nos. 1 and 2.

7. The case was investigated by S.L Roop Mangal Singh PW -6. After routine investigation a charge-sheet Ext. Ka. 8 under Section 307/34 was submitted against all the four accused.

8. At the trial the accused Nizamuddin was charged with the offence under section 307 I.P.C. while the remaining three accused were charged sheeted with the offence under section 307 I.P.C. read with section 34 I.P.C. The accused pleaded not guilty and claimed to be tried.

9. In all the prosecution examined six witnesses i.e. Hamiduddin PW-l, Ziauddin PW-2, Azizuddin P.W. 3, H.C. Ramji Mishra PW-4, Dr. Vinai Kumar Dwivedi P.W. 5 and S.L Roop Mangal Singh P.W. 6 in the case. The accused did not lead any evidence in their defence. The plea of the accused was that they, were falsely implicated in the case out of enmity.

10. The evidence of H.C. Ramji Misra P.W. 4 Dr. Vinai Kuma