DAYA SHANKER Vs. STATE OF U P

JUDGEMENT

(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.

(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.