- (1.) D. K. Trivedi, J. This appeal has been filed against the judgment and order dated 29-2-1996 passed by Sri V. N. Pandey, Additional District and Sessions Judge, Lucknow, thereby convicting the appellant for the offence punishable under Section 302 I. P. C. read with Section 34 I. P. C. and sentencing him to undergo imprisonment for life and further convicting the appellant under Section 307 I. P. C. read with Section 34 I. P. C. and sentencing them to undergo rigorous imprisonment for a period of five years.
(2.) THE facts leading to the prosecution of the appellant are that deceased Zaheer Hasan Khan, had obtained a contract for realisation of Tahbazari dues of leather market of Mahmoodnagar, Malihabad and accordingly he started realising those dues. It is further said that on11-2-1985 the deceased Zaheer Hasan Khan, had gone to Zila Parishad, Lucknow to submit his tenders for obtaining THEka of 'hides and Bones' of Malihabad Block and he submitted tender in the name of his son Firoz Hasan Khan, Ishtiaq Hasan Khan, also wanted to have this contract in his favour and he also submitted his own tender in the name of one Faiyyaz. THE tender of Firoz Hasan Khan being of highest amount was accepted by the authorities and on account of it, the appellant Ishtiaq Hasan Khan felt annoyed and hurled abuses at Firoz Hasan Khan, P. W. 1 and his father Zaheer Hasan Khan, deceased. It is further said that the appellant had also threatened deceased Zaheer Hasan Khan and his son Firoz Hasan Khan with dire consequences. THEre was also some altercation between the parties on account of that fact and on the intervention of police and arrests of both the sides, the matter was subsided. It was on account of that enmity and ill-will that the appellant Ishtiaq Hasan Khan alongwith his associates wanted to commit murder of Zaheer Hasan Khan and his son Firoz Hasan Khan. It is further said that on 3-3-1985 at about 10. 00 a. m. the deceased Zaheer Hasan Khan and his younger son Firoz Hasan Khan reached Mahmood Nagar Leather Market on Scooter and at about 10. 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, his associate Asgar Ali armed with 12 bore gun, accused Mohd. Naseem armed with country made pistol and one Shivakant 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 also 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 Chanda Khan r/o Mirzaganj, Javed Ahmad r/o Kakori, Jagdish s/o Sri Gulab r/o Alawal Pur, District Hardoi, Vishram r/o Amaniganj (Malihabad) and many other parsons, 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 Ex. Ka-5 at the Police Station on 3-3-1985 at about 10. 00 a. m. , on the basis of which a chik report Ex. 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 involved in this case, the appellant Ishtiaq Hasan Khan absconded and therefore, his case was separated and the remaining three accused persons, namely, Asgar Ali, Mohd. Naseem and Shiva K4ant Sharma were tried by the learned Additional Sessions Judge in S. T. No. 326 of 1985, State v. Asgar Ali and others, and S. T. No. 453 of 1985, State v. Shiva Kant Sharma and others, and vide judgment and order dated 10-5-1993 delivered by Sri Shailendra Saxena, the then Additional District and Sessions Judge, Lucknow the remaining three accused persons were acquitted of the charges framed against them. In fact evidence in this Sessions trial against the appellant Ishtiaq Hasan Khan was recorded under Section 299 Cr. P. C. Subsequently however, the appellant surrendered before the learned lower Court. In support of its case the prosecution examined Firoz Hasan Khan, P. W. 1 Shahzad Hasan Khan, P. W. 2, Constable Rakesh Kumar Gautam, P. W. 3, Dr. D. S. Shukla, P. W. 4, H. C. Jai Prakash Singh, P. W. 5, A. R. K. Aniruddha Kumar, P. W. 6, S. I. Munna Lal Bajpai, P. W. 7, H. C. Suresh Kumar Tiwari, P. W. 8, H. C. Amir Ali, P. W. 9 and Sri Sukhveer Singh, Investigating Officer, P. W. 10. The prosecution also tendered copy of the statement recorded under Section 299 Cr. P. C. in S. T. No. 326 of 1985 of eye-witness Vishram, who had died after his statement was recorded in S. T. No. 326 of 1985 when the accused was not tried.
(3.) THE defence examined no witness and instead filed certain documents. THE learned lower Court scrutinised the entire evidence on record and considering the entire circumstances of the case, believed the prosecution theory, convicted the appellant and sentenced him as above. Feeling aggrieved against the said judgment and order the present appeal has been filed. We have heard learned Counsel for the parties at length and we have gone through the record.;