- (1.) BARKAT Ali Zaidi, J. The accused-appellants have preferred this appeal being aggrieved with the judgment and order dated 14-6-2005 passed by Additional Sessions Judge, Court No. 1 Fatehpur in S. T. No. 339 of 1995, whereby he convicted the accused-appellant Faheem Khan under Section 302, I. P. C. and accused appellant Kafeel alias Chaina under Sections 302/34, I. P. C, for intentionally causing the death of one Miswahuddin and sentenced each of them to undergo life imprisonment and also to pay a fine of Rs. 5,000 each, in default to further undergo a term of one month imprisonment.
(2.) ACCUSED Mola expired before commencement of Trial in the Sessions Court and only remaining two accused faced trial. Heard Sri V. P. Srivastava, Senior Advocate and Sri Jagdish Singh Sengar, Advocate for the appellants and the Additional Government Advocate for the State. According to the prosecution version, on the night between 1/2-5-1994 around 9. 30 O'clock one Miswahuddin deceased aged about 30 years and real brother of P. W. 1 Khwaja Salahuddin went to the house of one Raza Uddin in village Andauli to see video. All the three accused were also seeing the video. From there, the deceased Miswahuddin went to the house of Saleem and all the three accused surreptitiously followed him, because there was suspicion that Miswahuddin had illicit relations with the wife of Saleem, who is brother of accused Faheem. The fact that Saleem was the real brother of accused Faheem, has not been disclosed in the F. I. R. but became clear from the record, including the statement recorded under Section 313, Cr. P. C. These accused saw deceased Mishwahuddin talking to the wife of Saleem. It was around 11. 30 O'clock in the night. All the three accused thereafter cornered the deceased Miswahuddin and the accused Faheem is said to have pierced a Karauli in his abdomen. Deceased ran crying from there and fell down on the door steps of the house of one Buddhu Shah, near by in an injured condition. There, he is said to have narrated the whole incident to P. W. 1 Khwaja Salahuddin, P. W. 2 Maqbool and P. W. 3 Ajaz Ahmad and other persons, who had come there and also said that his Chappals and Torch were left at the house of Faheem.
(3.) THE investigation of the case was assigned to S. I. Raj Bahadur Pathak, P. W. 7 by P. W. 8 Hari Shanker Dubey, Inspector P. S. Kotwali, in whose presence the case was initially registered under Section 307, I. P. C. , to which the police converted under Section 302, I. P. C. after the death of the injured Miswahuddin and then the investigation of the case was taken over by Inspector Hari Shanker Dubey P. W. 8 himself. S. I. Raj Bahadur Pathak, P. W. 7, after the investigation was assigned to him, copied out the injury report of injured Miswahuddin in the case diary and recorded the statement of Head Moharrir H. N. Ram, who had prepared the chick F. I. R. and the G. D. He went to the spot on 3- 5-1994 and prepared a site plan Ex. Ka-7 and also recorded the statement of injured in District Hospital Fatehpur. He also recorded the statement of other witnesses. P. W. 10 S. I. Tulsi Ram Shakyawar who was S. H. O. Swaroop Nagar, Kanpur had received the death memo of deceased Mishwahuddin on 3- 5-1994 from the L. L. R. Hospital, had gone to its mortuary and prepared the inquest report of the dead-body.;