- (1.) Conviction of the accused-appellant was altered by the Division Bench of the Allahabad High Court from Section 302 read with Section 149 to Section 304, Part I read with Section 149 of the Indian Penal Code, 1860 (in short "IPC"). Life imprisonment as awarded by the trial Court was altered to 10 years imprisonment for the altered conviction under Section 304, Part I, IPC. The trial Court had not awarded any separate sentence for the other offences.
(2.) Background facts alleged by the prosecution leading to the trial are essentially as follows : Hashim Khan (PW-1) lodged an FIR at about 1330 hours on 3-10-1977 in which the time of incident was stated to be 1300 hours on the same day. Distance of place of incident from police station was about one mile. As per FIR, PW-1, the complainant is the resident of village Lodhipur. The accused Chanda fired a shot at his uncle in the year 1975, a case was registered against him and that case was pending. Second time, in the year 1976, Sayeed and accused Chanda fired a shot on Qasim, the brother of the complainant. This case was about to be proceeded for trial in the Court. Accordingly, there was an old enmity between Qasim (hereinafter referred to as 'deceased') and the accused. Because of this enmity on 3-10-1977 at about 1.00 p.m., when deceased was coming back from Shahjahanpur city to his native village Lodhipur, near the Check post at Lodhipur accused-Chanda and his brothers accused Zakir and Shakir sons of Shujat Ali and Abbas son of Jameeluddin, Hameeduddin head of the village (Mukhia), Zaheer Shah son of Ghafoor (of the same village) and Nanneh alias Ishaq son of Ishtiyaq who is the brother-in-law of Chanda were standing there. Accused Sartaj and Chanda were holding country made pistol in their hands. Accused Zaheer exhorted and asked others to take Qasim, and he should not escape. Thereupon deceased Qasim raised alarm and ran towards the city. All of a sudden, Chanda fired a shot at him, which did not hit him. Thereafter, all the accused persons chased deceased Qasim, and after some distance accused Zakir, Shakir, Nanneh, Abbas and others caught hold of deceased and Sartaj fired a shot at him from a close distance due to which he fell down on the road. This incident was witnessed by complainant (PW-1), Naim (PW-2) and Sajid Ali of the same village and by-passers that sight persons after shooting the gun went away towards Lodhipur. The complainant came to police station by putting Quasim on a Rickshaw in the injured condition. The deceased breathed his last on 11-1-1978. He prayed for the registration of the case and for appropriate action.
(3.) On completion of investigation charge-sheet was placed. To substantiate its accusations 8 witnesses were examined including PW-1 Hashim Khan, Naim (PW-2) and Samiulla (PW-3) who claimed to be eye-witnesses. Accused persons pleaded innocence and stated that they were falsely implicated due to enmity.;