- (1.) BOTH these criminal appeals are connected with each other having arisen against judgment and order dated 25 -9 -1981 passed by II Additional Sessions Judge, Shahjahanpur in S.T. No. 590 of 1979. We propose to decide them together.
(2.) FACTUAL matrix may be related first. Daya Shanker, Kripal Singh, Kiran Pal alias Kishan Pal, Damodar Pal and Zahid Ali were tried before the trial Judge. Kiran Pal alias Kishan Pal and Damodar Pal are real brothers. The incident took place on 2 -10 -1979 at about 1.30 p.m. in Mohalla Warkjai of Jalalabad town and the F.I.R. was lodged the same day at 2.30 p.m. by Iqtedarullah Khan PW 1. The deceased was Mohd. Nabi Khan and two other persons, namely, Iqtedarullah Khan (complainant) and Noor Jahan sustained injuries in the incident. The complainant Iqtedarullah Khan PW 1 resided in Mohalla Workjai of town Jalalabad. He was originally resident of District Budaun. He was carrying on the profession of practising medicines in the building owned by accused Daya Shanker and his brother Mool Shanker. This building was previously joint and rent was paid by the complainant to both of them. Afterwards, partition took place between Daya Shanker and his brother Mool Shanker with the result that eastern portion of the building was allotted to Daya Shanker and western portion to Mool Shanker. The accused Damodar Pal and Kiran Pal alias Kishan Pal are sons of Mool Shanker. The portion comprising the shop in which the complainant Iqtedarullah Khan used to run his clinic came to the share of Mool Shanker. Daya Shanker used to run a shop of medicines in his portion while portion situated in front of Mool Shanker was in occupation of the complainant Iqtedarullah Khan as a tenant which consisted of a hall with three doors facing north and inter -connected adjoining room situate towards east. This room had three doors, one towards north, the other towards east and the third towards west connected with the main hall in which the complaint Iqtedarullah Khan used to run the clinic. There was a Chabutara in front of the shop and thereafter a road. At a distance of fifty paces was situated residential house of Iqtedarullah Khan towards south of the road. On the north of the road were the shops of Srikrishna, Abrar Husain and Kirpal. Thereafter towards west was the flour mill of the accused Zahid Ali. Daya Shanker accused also used to run his clinic in his shop where he was selling medicines. His medical practice was not successful because of competition surfacing from neighbouring clinic of the complainant Iqtedarullah Khan. As such he desired that Iqtedarullah Khan should vacate the aforesaid shop. On account of such professional rivalry, Daya Shanker and his brother also sent a notice to him asking him to vacate the shop in question. The complainant sent his reply to the same that he would vacate the aforesaid shop only when he could get another shop. Daya Shanker and his family members had given a threat to Iqtedarullah Khan that in case of his not vacating the shop, it would be got vacated by use of force. The report regarding this threat was also lodged by Iqtedarullah Khan and thereafter proceedings under Sections 107/117 of Cr.P.C. were launched by the Police. This was the background.
(3.) IQTEDARULLAH Khan used to open his clinic at 7.00 a.m. in the morning in summer season and at about 8.00 -9.00 a.m. in winter season. The clinic used to remain open till the fall of the evening. He used to sit in the hall in the centre on a chair facing north. A table was kept in front of this chair and two benches were kept towards both sides i.e. towards east and west for accommodating the patients. He used to examine the patients on these benches, prescribing medicines to them. On the southern wall, glasses were fixed in which medicines were kept. On the eventful day (2 -10 -1979) at about 1.30 p.m. he was sitting in his clinic on the chair facing north and on the benches lying towards east, the deceased Mohd. Nabi was sitting, who had come to the clinic as a patient. Rustam, Millan and Laddan were sitting on the western bench. They, too, were patients. At that time, accused Daya Shanker armed with a rifle, his nephews Damodar Pal and Kiran Pal alias Kishan Pal armed with lathis, the accused Kirpal armed with gun and one unknown person who was relative of accused Daya Shanker came from the flour mill of accused Zahid Husain and ascended the Chabutara of the clinic of the complainant. They started abusing the complainant -Iqtedarullah Khan and declared that the shop would be got vacated from him and that he would not be spared. Hearing these abuses, Mohd. Nabi who was sitting on the eastern bench stood up and came in front of the main door of the clinic. He requested the accused not to create trouble and that the complainant would vacate the shop in usual course. This Counsel of Mohd. Nabi was not relished by the accused Daya Shanker and he exhorted the other accused that he (Mohd. Nabi) was a sympathiser of the complainant and he should be disposed of first. Instantaneously, Daya Shanker fired two shots from his rifle which hit Mohd. Nabi and he fell down dead inside the clinic of the complainant. Seeing this firing, the complainant got up from his chair and fled from his clinic through western door. As soon as he came out, the accused Damodar Pal, Kiran Pal alias Kishan Pal and their unknown relative armed with lathis assaulted him. They also shouted aloud that the real culprit, namely, Iqtedarullah Khan was fleeing and that he should not be allowed to escape. In the meantime, the complainant jumped from the Chabutara, fleeing towards his house. Seeing him fleeing, Daya Shanker again fired from his rifle at him and Zahid Ali opened fire from his gun. Rifle fire opened by Daya Shanker hit him and the other fire hit Noor Jahan wife of Gamman who was waiting on the southern side of the road for some conveyance to board. She also fled towards south and fell down on the ground. Accused Daya Shanker fired several rounds while complainant was fleeing towards his house but these did not hit him and he successfully entered his house.;