- (1.) D. K. Trivedi, J. The above-noted criminal appeal and two revisions arise out of the judgment and order dated 10-5-1993 delivered by Sri Shailendra Saxena Additional District and Sessions Judge, Lucknow, in S. T. No. 326 of 1985 (State v. Asgar Ali Khan and others) and S. T. No. 453 of 1985 (State v. Shiva Kant Sharma) thereby acquitting the accused persons namely; Asgar Ali, Mohd. Naseem and Shiva Kant Sharma for the offence punishable under Section 302/307 I. P. C.
(2.) THE facts leading to the prosecution of the appellants are that deceased Zaheer Hasan Khan s/o Sri Aziz Hasan Khan r/o Mirzaganj, Qasba Malihabad, District Lucknow, had taken a THEka (contract) for realisation of Tahbazari dues of a leather market of Qusba Mahmoodnagar. On 3-3-1985 at about 10. 00 a. m. the deceased Zaheer Hasan Khan and his own younger son Firoz Hasan, P. W. 1, reached Mahmoodnagar leather market on Scooter at about 9. 00 a. m. , and when they were present in the market, an Ambassador Car arrived there, stopped on the road side of the market and accused Ishtiaq Hasan Khan, armed with 12 bore gun accused Mohd. Naseem armed with country made pistol and one Shiva Kant Sharma also known as Pandit armed with a Revolver descended from the Car and reached near Zaheer Hasan Khan. It is further said that Ishtiaq Hasan Khan and Asgar Ali both fired at Zaheer Hasan Khan with their respective arms and from a distance of about 5-6 paces, as a result of which Zaheer Hasan Khan, sustained fire-arm injuries, fell down and died instantly. Firoz Hasan Khan, the son of deceased Zaheer Hasan Khan, who was also present in the leather market witnessed the occurrence and in order to escape himself ran towards Abadi and all the miscreants chased Firoz Hasan Khan as well and opened fires at him as well with the intention to kill. When Firoz Hasan Khan went in the narrow lane of the abadi where Ambassador Car of the accused persons could not go, the accused returned back and went away towards Lucknow. The entire occurrence was witnessed by Zafar Hasan Khan alias Chandra Khan r/o Mirzaganj, Javed Ahmad r/o Kakori, Jagdish s/o Sri Gulab r/o Alawal Pur, District Hardoi, Vishram, P. W. 2 r/o Amaniganj (Malihabad) and many other persons, who were present in the market. Due to panic created in the market as a result of firing, all shop keepers and other persons ran away and left the market. It is further said that the deceased sustained fire arm injuries on his head and shoulder. Firoz Hasan Khan, the son of the deceased Zaheer Hasan Khan, out of fear went to the place of his brother-in-law and thereafter he went to his own house and then Sahzad Hasan Khan, the second son of Zaheer Hasan Khan, the real brother of Firoz Hasan Khan, P. W. 1, lodged written report Ext. Ka-5 at the Police Station on 3-3-1985 at about 10. 00 a. m. On the basis of which a chik report Ext. Ka-7 was prepared and a case against the accused persons was registered vide G. D. entry Ext. Ka-8. The police reached the scene of occurrence. The Investigating Officer found the dead-body of Zaheer Hasan Khan, lying in a pool of blood in the market campus. The Investigating Officer thereafter prepared Panchayatnama of the dead-body of Zaheer Hasan Khan and other relevant memos. He also recorded the statements of witnesses and prepared site-plan Ext. Ka-13. The body of Zaheer Hasan Khan was sent to the District Hospital, Lucknow, for post- mortem, where post-mortem was conducted vide post-mortem report Ext. Ka-4. After completing necessary formalities and investigation charge-sheet was submitted against the accused persons. Out of four accused persons Ishtiaq Hasan Khan, absconded and, therefore, his case was separated. Case of three accused persons, namely; Asgar Ali Mohd. Naseem and Shiva Kant Sharma was tried by the learned lower Court and evidence against Ishtiaq Hasan Khan was recorded under Section 299 Cr. P. C. , in which accused persons denied charges against them and claimed trial. Their defence is that they have been falsely implicated in this case due to misunderstanding.
(3.) IN support of its case, the prosecution examined as many as nine witnesses. They are Firoz Hasan P. W. 1 the son of the deceased Zaheer Hasan Khan, Vishram, P. W. 2, Sahzad Hasan Khan, P. W. 3, Dr. C. Shukla Medical Officer, P. W. 4, Constable Clerk Krishna Kumar Tiwari, P. W. 5, Anurudh Kumar, Record Keeper of the Office of the Superintendent of Police, P. W. 6, Head Constable Jai Prakash Singh, P. W. 7, INvestigating Officer Sukhveer Singh, P. W. 8 and Munna Lal Bajpai, P. W. 9. The defence examined no witness. The learned lower Court scrutinised the entire evidence on record, disbelieved the prosecution theory and acquitted accused persons. Feeling aggrieved against the said judgment and order, the State of U. P. filed Criminal Appeal being No. 337 of 1993, State v. Asgar Ali and others, while complainant Sahzad Hasan Khan filed two criminal revisions against the acquittal of Shiva Kant Sharma, Asgar Ali and Mohd. Naseem. Since all the three matters arise out of the same judgment and order, they are being disposed of together by this judgment.;