Satyendra Singh Chauhan, J. - (1.) Criminal Appeal No.2873 of 1982 has been filed on behalf of appellants-Mohd. Kalim Khan and Mohd. Shamim Khan and Criminal Appeal No.2982 of 1982 has been filed on behalf of appellant-Israr. Since both the criminal appeals have been filed against one and the same judgement, therefore, they are being decided by a common judgement.
(2.) Both the criminal appeals have been preferred by the appellants against the judgement and conviction dated 9.11.1982 passed by Second Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No.125 of 1981 convicting appellants-Israr, Mohd. Kalim Khan and Mohd. Shamim Khan and sentencing them to rigorous imprisonment for life under Section 302/34 IPC and one year's rigorous imprisonment under Section 324/34. Both the sentences have been directed to run concurrently. At the time of pronouncing the judgement, appellant-Israr was in jail.
(3.) The prosecution case as disclosed in the FIR is that Bundan Khan, the informant, lodged an FIR with the allegation that he was resident of Talgaon of the same police station and a case was going on between him and Israr of Wazirpur and criminal case was also going on with Shamshul etc. resident of Talgaon, who happen to be 'Nanihalwala' of Israr. On account of the aforesaid enmity, Israr etc. wanted to take revenge from him and his brother-in-law Wasi Khan. On 2.1.1981 at 4:30 PM, informant-Bundan Khan, deceased Wasi Khan along with Sallan son of Safayatullah, resident of the village of informant and and Mohd. Yar Kan son of Altaf Khan resident of Lohargawan and Babu Ali son of Altaf Ali resident of Nigohi were coming back from Shahjahanpur after meeting their Advocate in respect of their case by Bus No.USN 4034. At about 4:30 PM, when they reached Sanda Khas trisection and the bus stopped to alight the passengers, all of sudden Israr holding rifle, Kaleem holding gun and their father Shameem Khan holding Lathi came near to the bus and threatened the passengers to come down. On account of fire of the weapons, passengers started to run helter-skelter whereupon Israr exhorted Wasi Khan to come down so that he may decide tomorrow's case today and as soon as Wasi Khan and others alighted from the bus and started running towards Sanda, Israr fired at Wasi Khan with rifle which hit the lateral left hip of Wasi Khan and when Wasi Khan in order to save his life ran towards the crowd, Israr fired one more shot, which hit Wasi Khan on the right side below the clavicle bone. After receiving the injuries, Wasi Khan fell down and passengers ran to save Wasi Khan. Kaleem and his father Shameem said whosoever would come forward would be killed and thereupon, Kaleem fired one more shot in the air. On account of the pressure of the informant and witnesses and the persons belonging to Sanda, Israr etc. ran away towards their village. When the informant and others went to Wasi Khan, they found Wasi Khan dead. One passenger Maiku has also received firearm injury, who was brought by the informant along with him to the police station at the time of lodging of the FIR leaving Sallan, Mohd. Yar Khan and Babu Ali near the dead body. This incident was witnessed by witnesses Sallan, Babu Ali, Mohd. Yar Khan and people of the bus. The aforesaid FIR was lodged on 2.1.1981 at 17.15 hours at Crime No.1 of 1981. The distance of the police station from the place of occurrence is four and half kilometres. After lodging of the FIR, inquest was prepared and investigation followed. Dead body was sent for post-mortem and the injured was sent for medical examination. Statements of the witnesses under Section 161 Cr.P.C. were recorded by the Investigating Officer and after recording the statements under Section 161 Cr.P.C., charge sheet was filed under Sections 302/307/34 IPC. The case was committed to the Court of Session by the Chief Judicial Magistrate vide order dated 6.3.1981. The Court of Session framed charges under Sections 302/34 & 324/34 IPC against the three accused persons. Evidence of the witnesses was recorded. The prosecution in order to prove the prosecution case has examined PW-1-Bundan Khan, who happens to be the complainant and eye witness, PW-2 Mhod. Yar Khan (maternal brother of the deceased), PW-3 Sallan Khan, resident of Talgaon and PW-4 Uma Shanker, conductor of the bus (neither cited as witness in the charge sheet nor mentioned in the FIR), PW-5 Head Constable Ram Gopal Pandey, who proved the chik report and G.D. entries, PW-6 Dr. P.K. Gupta, who conducted post-mortem of the deceased, PW-7 SHO Sri V.P. Singh, Investigating Officer, who filed the charge sheet, Constable Moti Ram, who took the body to the mortuary. Dr. P.N. Rastogi was examined by the court as CW-1, who had medically examined the injured eye witness Maiku (Maiku not produced during the course of trial); CW-2 Vijai Bahadur Saxena, Executive Officer, Bisalpur proved the entries made in the Nagar Palika record relating to the bus in question; DW-1 Kazi Sayed Masood Hasan proved the marriage; DW-2 Kazi Sayed Maqsood Ahmad proved the marriage entries in the register; DW-3 Kailash Chandra, record keeper of Chungi (octroi), produced the register; DW-4 Rajendra Prakash produced Chungi (octroi) receipt to prove the entry of the bus. The aforesaid witnesses proved the prosecution case and as a result of which the appellants have been convicted.;