Onkareshwar Bhatt, J. - (1.) -State of U. P. has preferred this appeal against the judgment and order dated 28.9.1981, passed by the then IInd Additional Sessions Judge, Budaun, in Sessions Trial No. 19 of 1980. The accused-respondents, Sattar Khan, Menhdi Khan, Nasrullah Khan and Sarmast Khan were tried under Sections 302 and 302 read with 34, I.P.C. and were acquitted by the impugned order.
(2.) WE have heard Sri S. K. Paul, learned A.G.A. for the State and Sri P. N. Misra, learned senior advocate, appearing for the accused-respondents. In this case, murder of Idris Khan took place on 6.12.1979 at 6.15 p.m. in mohalla Jogipura police station Kotwali district Budaun due to fire arm injury. Accused-respondent, Sattar Khan is alleged to be armed with gun. The other three respondents are alleged to be armed with lathis. The accused-respondents and the informant, Rashid Khan, P.W. 2, belong to one family. About eleven months earlier to the present occurrence, murder of four brothers of accused, Sattar Khan had taken place. In the above murder case, Idris Khan (deceased of this case) along with his son, Adib Khan and Ghuran Khan and Zaheer Khan were accused. All the above accused were bailed out. The bail was conditional in compliance whereof the deceased, Idris Khan was living in the city of Budaun near the house of Haji Sakhawat Hussain in the phatak (gate) of Chuna Khan. Proceeding for cancellation of their bail was pending.
(3.) ON the date of occurrence, informant, Rashid Khan, P.W. 2, along with Sabbir Khan, P.W. 3, and Noor Navi Khan, P.W. 4, all residents of village Rithia, went to Budaun city for listening the speech of the then Prime Minister, Sri Charan Singh. After listening the speech, they went to market and thereafter at about 5.30 p.m., they went to the phatak of Chuna Khan, where the deceased was residing. The deceased was not present, therefore, they sat down out-side the phatak and waited on a cot. At about quarter past six, deceased carrying a cycle in his hand came in northern lane. At that very time from the southern side lane, which adjoined a mosque, respondent, Sattar Khan armed with gun and other three respondents armed with lathis emerged. At that place, an electric bulb which was in front of the house of Sakhawat Husain and also on the pole was emitting light. The respondents called the deceased and no sooner he turned behind than respondent, Sattar Khan fired from his single barrel gun at the deceased due to which he fell down. His cycle also fell down. The informant, Rashid Khan, Sabbir Khan and Noor Navi Khan challenged the accused-respondents but they were threatened by them. Thereafter they made good their escape through the lane adjoining the mosque. A written report was got prepared by the informant through scribe, Maseen Khan. The informant went to the police station Kotwali and lodged the report at 6.45 p.m. where chik F.I.R. of the case was prepared. Noor Navi Khan and Sabbir Khan remained at the place of occurrence near the deceased. The investigation in the case took place and charge-sheet was submitted against the respondents. On the date of occurrence on 6.12.1979, the three eye-witnesses, namely, Rashid Khan, Sabbir Khan and Noor Navi all residents of village Rithia, went to Budaun for listening the speech of the then Prime Minister. The fact that the then Prime Minister came to Budaun on that date is also proved from the statement of Bhagwan Das, D.W. 2, A. K. Burnwal, D.W. 3, and Shashi Ram Singh, D.W. 4. Shashi Ram Singh has stated that the Prime Minister was to deliver his speech at 11.20 a.m. in the ground of Islamia Inter College. He has stated that the arrival of the Prime Minister was delayed for about two hours and his departure was also delayed by two hours. The claim of the three eye-witnesses of the case that they went to Budaun for attending the speech of the then Prime Minister is corroborated from the fact that the Prime Minister did come to Budaun on that date. After the speech was over, they went to market. In the market, they learnt at the shop of Sakhawat that the deceased, Idris Khan, had come. In order to meet the deceased, all the three proceeded towards phatak of Chuna Khan. Since the deceased was not present, they waited for him. The deceased was cousin brother of the informant, Rashid Khan. According to the conditional bail order, the deceased could not come to his village. There was nothing unusual or unnatural if the informant, Rashid Khan, Sabbir Khan and Noor Navi went to phatak of Chuna Khan to meet the deceased.;