JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of the Allahabad High Court upholding the conviction of appellant Aqeel Ahmad (Appellant in Crl. A. No.595/07) in Criminal Appeal No.2630 of 2004 but altering the sentence of death as awarded by learned Additional District and Sessions Judge, Court No.3, Aligarh to life sentence. Criminal Appeal No.2593 of 2004 filed by Ashiq Ali and Criminal Appeal No.2590 of 2004 filed by Mohammad Shakir and Chaudhary Aleem were also dismissed. The Criminal Reference for confirmation of death sentence as referred under Section 366 of the Code of Criminal Procedure, 1973 (in short the `Code') was answered in the negative. While Criminal Appeal No.595 of 2007 has been filed by Aqeel Ahmad, the other accused persons, namely, Mohammad Shakir, Ashiq Ali and Irfan have filed Criminal Appeal No.596 of 2007. Since the accused Ashiq Ali did not file surrender certificate, special leave petition was dismissed so far as he is concerned. So far as accused Chaudhary Aleem and Irfan are concerned it is submitted that they have died during the pendency of the matter before this Court. State of U.P. has filed Criminal Appeal No.597 of 2007 questioning alteration of death sentence to life sentence by the High Court.

2. Background facts leading to the trial of accused persons as projected by the prosecution is as follows:

A report was lodged by Ahmadur Rahman Sherwani at Police Station, Civil Lines, Aligarh stating that some construction of lane from the crossing of Amirnisha to Goshtwali gali was going on from the quota of Khwaja Aleem, M.L.A. A banner was fixed by Vyapar Mandal, Amirnisha and on the banner, name of his son Favad Khan Sherwani was mentioned as General Secretary. On 16.12.2001 at about 4.00 p.m. Shakir, Sabhasad had taken out the banner. He came at the house of informant armed with D.B.B.L. Gun. Irfan driver, Chaudhary Aleem, Shakir son of Shabbir and Ashiq Ali. His sons Favad and Shahood Ali khan were present there and they started abusing them and challenged saying that how he could dare to fix the banner and set the banner on fire. His sons told him that since there was a festival next day, they should talk about it later on. Hearing this, companions of Shakir Sabhasad exhorted and Shakir and appellant Aqueel Ahmad started firing from their guns which hit both his sons. He alongwith Iqbal Ahmad, Farooq Ahmad, Shah Alam, Jalaluddin, Mohd. Shabir, Maroof Ahmad Khan, Majid Ali khan, Subhash Chandra and others who were making purchases in the nearby shops came to rescue them and accused persons firing from their country made pistols and guns went away. His younger son Favad Khan (described as D1) died on the spot and injured Shahood (described as D2) died in the hospital during treatment. Shah Alam had also received fire arm injuries and he was taken to the Medical College. The report was registered at the Police Station Civil Lines on 16.12.2001 at 6.25 p.m. and the distance of the police station is 1 km. from the place of occurrence. After the registration of the report, Shri B.K. Tiwari, S.H.O. Civil Lines started the investigation. He recorded the statement of scriber of the report Om Prakash Chaturvedi, informant and Iqbal Ahmad. Thereafter, he reached at the place of occurrence and prepared the site plan on the direction of the informant which is Ex.Ka-21. He prepared site plan of the place where the banner was fixed, which is Ext. Ka-22. He prepared the recovery memo of the blood stained and plain earth and prepared the recovery memo of empty cartridge 12 bore and one bullet. Recovery memo of half burnt banner was prepared. The recovery memos are Ext. Ka-23, 24 and 25. He recorded the statement of witnesses, thereafter he reached the Medical College and instructed Sub-inspector N.L. Arya to prepare the inquest memo of the deceased persons Favad and Shahood. After the preparation of inquest memos the dead bodies were sealed and handed over to