(Delivered by Hon'ble Akhtar Husain Khan,J.)

Present two Appeals; Appeal No.5054 of 2005 (Shakeel Ahmad Vs. State of U.P.) and Appeal No. 146 of 2006 (Jamil Ahmad Vs. State of U.P.) have been filed against same judgement and order, therefore, both Appeals are taken up together and decided by this common judgement.

Above two appeals have been filed by accused Shakeel Ahmad and Jamil Ahmad respectively under Section 374 Cr.P.C. against judgement and order dated 11.11.2005 passed by Additional Session Judge, Court No.5, Azamgarh in Session Trial No. 76 of 1999, whereby learned Additional Sessions Judge, Azamgarh has convicted accused appellant Jamil Ahmad for offences punishable under Sections 302 I.P.C. and 506(2) I.P.C. and accused appellant Shakeel Ahmad for offences punishable under Sections 302/34 I.P.C. and 506(2) I.P.C..

Learned Additional Session Judge has sentenced vide his impugned judgement and order dated 11.11.2005 to accused appellant Jamil Ahmad for offence punishable under Section 302 I.P.C. to imprisonment for life and fine of Rupees one thousand and for offence punishable under Section 506(2) I.P.C. to imprisonment for six months and to accused appellant Shakeel Ahmad for offence punishable under Section 302/34 I.P.C. to imprisonment for life and fine of Rupees one thousand and for offence punishable under Section 506(2) I.P.C. to imprisonment for six months. Learned Additional Session Judge has ordered each accused appellants to undergo imprisonment for three months in default of payment of fine. Learned Additional Session Judge further ordered that all sentences awarded to each appellants accused shall run concurrently.

Sri Rajesh Pratap Singh, Advocate and Sri Rajul Bhargava, Advocate, learned counsel appeared for accused appellants and Sri Narendra Kumar Singh Yadav, learned A.G.A. appeared for State respondent.

We have heard learned counsel for the parties and perused records.

According to F.I.R. Ext.Ka-1 in brief, version of prosecution is that on 10.5.1998 at about 9.30 P.M. in night complainant Nasim Anwar and his father Abdul Gani were going back to their house from their hata situated in Mohalla Pura Rani alongwith Abu Talha son of Mohd Sami resident of Pura Rani and Anwar Ahmad son of Amanatullah resident of Hyderabad.. Abdul Gani father of complainant was talking with Abu Talha and Anwar Ahmad. Complainant Nasim Anwar was going behind them, when they reached near hata of Hazi Masood and house of Abdul Salam, accused appellantds Jamil Ahmad and Shakeel Ahmad who are resident of same mohalla of complainant, came suddenly from west side and accused appellant Shakeel Ahmad exhorted accused appellant Jamil Ahmad, whereupon accused appellant Jamil Ahmad fired at the back of Abdul Gani; father of complainant Nasim Anwar with close point. Having received injury Abdul Gani father of complainant Nasim Anwar fell down. Complainant Nasim Anwar and above persons accompanying father of complainant raised alarm and tried to catch accused appellant Jamil. Whereupon accused appellant Shakeel pointed out katta towards complainant and persons accompanying him and threatened that if anyone come forward he shall also be killed. Complainant Nasim Anwar and above persons accompanying him could not chase accused for a long distance due to fear. Both the accused appellants ran towards east intimidating complainant and persons accompanying him.

According to F.I.R. Ext.Ka-1 complainant Nasim Anwar and above persons accompanying him saw the occurrence in the light of torch and electricity and identified accused appellants Jamil and Shakeel very well. According to F.I.R. Ext.Ka-1 when complainant Nasim Anwar after having chased accused appellants for a short distance came back to his father, his father succumbed to injuries on spot.

According to F.I.R. Ext.Ka-1 a quarrel had taken place between Abdul Gani father of complainant and accused appellant Jamil regarding fish and tenant of ahata of complainant Nasim Anwar about