R.K.SAKSENA, J. - (1.) MUSTAFA , appellant, aged about 18 years in 1974 A.D. stands convicted under Section 302 of the Indian Penal Code, simpliciter, with a sentence of imprisonment for life, per judgment and order dated the 5th of October, 1978, passed by Sri M. M. H. Siddiqui, the then, Additional Sessions Judge, Gayanpur, Varanasi.
(2.) THE Grand Trunk Road runs east -west in village -Gopiganj, within police station Gopiganj, District Varanasi. On each side of this road, there are shops and a Government Dispensary is in the north of this road at a distance of about 50 paces from the shops. A shop owned and run by one Ram Nath Mali, facing the road, is to the south of the road. To its immediate east, there is the shop of Rajendra Bahadur and then in the same direction we find the shop of Dil Bahadur. These shops also face the road towards north. A Gali running north -south exists to the east of the shop of Dil Bahadur. It connects the road towards north and goes to Mohalla Chaurihar to words south. There is an open place between the southern and of the road end the shops described above. To the north of the shop of Dil Bahadur, there was a wooden gumati for sale of tea, cigarette, betel etc. A wooden bench was lying to the west of this gumati for the user of customers. At a distance of about 8 paces towards west from this bench, sand in sufficient quantity was stored just near the southern end of the road. There is no dispute about this topography ; Kalloo (P.W.1), who is the real brother of Siraj Khan (deceased) has given this description in his statement, which finds corrobration from the site plan prepared by the Investigating Officer in the course of the investigation of this crime. Siraj Khan, then aged about 21 years was, according to the recitals of the report of this crime, lodged at police station, sitting in front of the shop of Ram Nath Mali described above, on the 7th of November, 1974 at about 6.45 p.m. Mustafa, appellant, is said to have fired shot at Siraj Khan, which resulted in the sustainment of wounds in both the thighs, lower portion of the abdomen and around the scrotum. Indisputably, the relations between the appellant and the members of his family, on one hand and Siraj Khan and the members of his family, on the other, were strained from before, Enmity is, therefore, said to be the case of murderous assault.
(3.) IT would not be out of place to mention here that the oral evidence adduced by the prosecution at the trial fixes the place of the incident in front of the shop of Dil Bahadur, Kalloo (P.W. 1), Qayum Khan (P.VY. 2; and Masidi Khan (P.W. 5), who claim to have witnessed the actual assault allegedly made by the assailant on Siraj Khan on the said date and time, have stated that while Siraj Khan (deceased) was sitting on the bench in, front of the wooden stall of Dil Bahadur referred to above and was taking tea, Mustafa (appellant) came there and after having stationed himself on the heep of the sand stored at a distance of about 8 paces from the bench, fired shot at Siraj Khan from a country made pistol, thereby causing wounds on the portions referred to above.;