BASHIR Vs. STATE OF U P

JUDGEMENT

(1.) The present appeal has been filed by two accused-appellants out of which appellant no. 1 Bashir son of Sri Murli died during the pendency of appeal. The appeal on his behalf has already been ordered to be abated by Co-ordinate Bench of this Court vide order dated 13.9.2018 and the present appeal survives with respect to appellant Afsar son of Roab Sher only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant.

(2.) The present appeal has been filed by the appellant against the judgment and order dated 29.7.1985 passed by Ist Additional Sessions Judge, Farrukhabad in S.T. No. 364 of 1984 convicting and sentencing the appellant under section 302/34 I.P.C. to undergo life imprisonment.

(3.) The prosecution case in brief is that an F.I.R. was lodged by the informant P.W. 1 Neksu at police station Kampil against two accused, namely, Bashir and Afsar stating that on 20.3.1984 he along with his brother Ali Mohammad and one Kallu of his village had gone to village Pankhiya Nagla to see the Shisham tree and when they were returning to their village then at the outskirt of village Iklahra where on either side of the road which run from West to East there were fields of one Niwazi. He stated that quite close to the field belonging to Niwazi on the Southern side of the road there was field of Ali Mohammad in which there was a Rahat and a well. Ali Mohammad was a little ahead of him and Kallu and when they were near the field of Niwazi and the Rahat at about 2 p.m. in the afternoon both the accused persons, who had been lying ambush in the field of Niwazi came out with country made pistols in their hands and fired at Ali Mohammad, who tried to run away but fell down in other field of Niwazi towards North of the road in which Barley crop had been standing. Both the accused persons went near Ali Mohammad and again fired at him with their pistols saying "we have taken the revenge today". Thereafter, both the accused ran away towards the North. They were chased by the witnesses upto some distance but none of them could be apprehended.