(1) ON a night during the holy month of Ramzan in 1978 an unholy act of murder took place at Bajaria Khansama (Rampur District, U.P.). An altercation on a trivial issue had snowballed into the murder when deceased Ishtiaq Khan was shot dead. The present appellant and three other persons were arrayed before the Sessions Court for facing a charge under Section 302 read with Section 34 of the Indian Penal Code. The Sessions Court acquitted all the accused. On appeal filed by the State, the Division Bench of the High Court of Allahabad reversed the acquittal and convicted the present appellant under Section 302 and sentenced him to imprisonment for life. Hence, as of right, the appellant has come up to this Court in appeal.

(2) THE incident, as pictured by the prosecution, happened like this: deceased Ishtiaq Khan was sitting inside the tea shop of one Abdul Nabi. On the opposite side of the road, there was a sweetmeat shop and all the accused were sitting inside it. As the radio was being played on a high pitch, an exchange of words took place between those who were sitting in the tea shop and the accused. The appellant questioned the right of PW 1 Imtiaz Khan in directing the radio to be played down. The appellant and his brother crossed over the road and threatened PW 1 and others for raising this petty issue. A little later the deceased reached there and on coming to know of the development of the incident, he expressed his resentment at the incident reaching that range on such a petty issue.

(3) IT was then that the appellant moved forward with a pistol accompanied by the second accused Ahmad Jan and another person with daggers in their hands. It is alleged that the appellant fired with his country-made pistol on the deceased which resulted in his sustaining 97 pellet injuries on the chest portion. He fell down and it was followed by the other assailants inflicting stab injuries on the deceased. When PW 2 Akbar Shah intervened, he also was stabbed by one of the assailants.

(4) THERE is no dispute that the deceased was shot dead on the night and that his body was subjected to autopsy by PW 8 Dr Srivastava. Since there was dispute as to the place of occurrence and in the absence of the prosecution examining the owner of the tea shop, the trial court thought it fit to summon Abdul Nabi as a court witness. He was examined as CW 1. Though reluctantly, Abdul Nabi admitted that the incident of firing took place in front of his tea shop. At the same time, he was reluctant to admit that it happened exactly on the platform installed in front of the shop. The evidence of CW 1 Abdul Nabi, has satisfied us that the incident of murder had taken place in between his tea shop and the abutting road.

(5) THREE eyewitnesses had been examined by the prosecution among whom PW 1 Imtiaz Khan was the person who furnished the FIR on the very night itself. PW 2 Akbar Shah, is the person who sustained stab injury in the very same incident (his injury had been noticed by PW 4 Dr Bhardwaj). He had one incised bone-deep wound on the top of the shoulder and another superficial incised wound on the back of the left forearm above the wrist joint. The third witness to the occurrence Baboo Khan was examined as PW 3. He is the immediate neighbour of the deceased.

(6) AS the Sessions Judge was not persuaded to accept the prosecution story mainly due to non-finding of a drop of blood at the scene of the occurrence, the Division Bench has considered that aspect in detail. Different possibilities were considered as to how the investigating officer could have missed noticing the blood when he went to the spot on the next evening. One possibility is that of the blood having oozed into the inside of the system. Another possibility is that even if some blood had flowed outside that would have disappeared due to trampling of the pedestrians and the crowd which would have thronged at the scene on the following day.

(7)