G. N. Ray, J. - (1.) This appeal is directed against the Judgment dated September 27, 1984 passed by the Division Bench of the Allahabad High Court setting aside the judgment dated April 30, 1977 passed by the learned Additional Sessions Judge, Second Court, Kanpur (Dehat). By the impugned Judgment, the Division Bench of the Allahabad High Court allowed the appeal preferred by the State of Uttar Pradesh against the judgment of acquittal in Sessions Trial No. 235 of 1976 and convicted the accused/appellant Mohd. Aslam under Section 302, IPC and sentenced him to imprisonment for life.
(2.) The prosecution story in short is that there is long standing enmity between Abdul Salem and Abdul Hamid Khan Pradhan on one side and the complainant Abdul Hamid on the other. Such enmity arose out of rival claim in placing Sawai on the Akhara of Tajias at the time of Moharram. Sawai is a kind of flag which is put on Tajias at the time of Moharram. Over such dispute a civil litigation was going on between the said parties and there were also criminal proceedings under Section 107 read with Section 117 of the Code of Criminal Procedure between the said parties. Shamim Raza was nephew and son-in-law of Abdul Hamid, the complainant and the said Shamim Raza was doing pairvi of the Said cases on behalf of Abdul Hamid. For the aforesaid reasons, Abdul Salem and Abdul Hamid Khan Pradhan became inimical towards Shamim Raza and Abdul Hamid. Mohd. Aslam, the accused/appellant is the son of Abdul Salem. Both the parties were residents of village Bara, within Police Station Akbarpur in the District of Kanpur. On December 25, 1975 at about 6.00 p.m. Shamim Raza was sitting on a wooden bench in front of a hair cutting shop of Ilyas in village Bara. Mohd. Umar and Abdul Khaliq (P. W. 1) were also sitting with him and the said three persons were talking. The Gumti of one Mohd. Laiq was at a short distance towards the east of that place. Bhurey (PW 2, Qamruddin (PW 3) and Abdul Hamid were standing near the said Gumti and had also been talking. There was light coming from electric bulbs at that place. At that time, the accused/appellant, Mohd. Aslam came there armed with a double barrel gun. He challenged Shamim Raza and threatened to kill anyone who would come forward. Thereafter, he fired two shots. By the said shots, Shamim Raza and Mohd. Umar sustained gun-shot injuries and both of them fell down. Shamim Raza died on the spot and the condition of Mohd. Umar also became serious. Such occurrence was seen by Mohd. Umar, Abdul Hamid, Bhurey and Qamruddin. Peer Mohammed (P.W. 10) took Mohd. Umar to Lala Lajpatrai Hospital at Kanpur for treatment and at 7.30 p.m. Dr. R.C. Asthana (PW 8) examined Mohd. Umar. Abdul Hamid went to his house and got a report of the occurrence written by Mohd. Raizwan (PW 4) and took the said report to Akbarpur Police Station which was about 4 miles away and lodged the F.I.R. at 7.15 p.m. Station Officer in charge of the Akbarpur Police Station, Mr. Jagdamba Prasad Misra, took up the investigation of the case and he interrogated Abdul Hamid at the Police Station and thereafter reached the scene of occurrence at about 7.55 p.m. He found the dead body of Shamim Raza lying at the scene of occurrence and he prepared inquest report and other connected papers. He also interrogated Bhurey, Qamruddin and Abdul Khaliq who were the eye-witnesses. He also prepared the site plan and found blood on the wooden bench and also on the ground and collected portion of the blood stained wooden bench and blood stained bricks. The injured Mohd. Umar was interrogated in the hospital on January 1, 1976. The post-mortem examination on the body of Shamim Raza was preformed by Dr. Prakash (PW 6). Mohd. Umar died in the hospital on January 4, 1976 and his post-mortem examination was performed by Dr. B. D. Misra at Kanpur on January 5, 1976.
(3.) The accused appellant Mohd. Aslam denied the prosecution allegations against him and alleged that he was falsely implicated on account of enmity and party faction. He also denied that he had been absconding from the village and he examined two witnesses in defence. The learned Additional Sessions Judge did not find the prosecution case and the evidences acceptable. Accordingly, he acquitted the accused/appellant. The State thereafter preferred an appeal before the Allahabad High Court and as aforesaid, the Allahabad High Court allowed the said appeal, set aside the judgment of acquittal passed by the learned Sessions Judge and convicted the accused/appellant under S. 302, I.P.C. and sentenced him to suffer rigorous imprisonment for life.;