B. P. Singh, J. -
(1.)The appellants in these appeals, namely, Nandu Rastogi alias Nandji Rastogi and Bal Mukund Rastogi are brothers. They along with one Jagdish Chamar and Mohan Singh were put up for trial before the 2nd Additional Sessions Judge, Rohtas at Sasaram, who found the appellants and Jagdish Chamar guilty of the offence under Section 302/34, IPC and under Section 27 of the Arms Act but acquitted Mohan Singh. They were sentenced to undergo imprisonment for life under Section 302/34, IPC and to undergo rigorous imprisonment for one year under Section 27 of the Arms Act. They preferred three appeals before the High Court but by a common judgment and order, the High Court dismissed the appeals and affirmed their conviction and sentence. Three special leave petitions were preferred before this Court but since Jagdish Chamar did not surrender to his sentence, his special leave petition was dismissed by order dated 3rd December, 2001 while special leave to appeal was granted to the appellants herein.
(2.)The informant Shyam Mohan Rastogi, PW.4 is the uncle of the appellants being the cousin of their father. The deceased Shankar Rastogi was the son of the informant PW.4. It is alleged that in an occurrence which took place at about 7.00 p.m. on 12-11-1985 he was shot dead by appellant Nandu Rastogi. It is the case of the prosecution that the three accused, along with two unknown persons, came armed with country made pistols and perpetrated the crime. According to the prosecution the background in which this occurrence took place, and which also discloses the motive for the offence, is that the informant PW.4 owned a house which he sold to one Braj Kishore Rastogi, who in turn sold the said house to appellant Nandji Rastogi. Manjoor Ansari. PW.1 was the tenant of a shop in that building, but Nandji Rastogi was pressurising him to vacate the premises. Shankar, (deceased) son of the informant, took the side of Manjoor Ansari and declared that he will not permit Nandji Rastogi to forcibly evict him. He even threatened that he may challenge the sale of the house by his father since his father had no legal authority to sell his share in the house. It appears from the evidence on record the Manjoor Ansari is on good terms with the informant and his family members and continued to occupy the shop premises even on the date of occurrence.
(3.)The case of the prosecution as disclosed in the First Information Report lodged by PW.4 at 8.00 p.m. on 12th November, 1985, soon after the occurrence, is that at about 5.00 p.m. the informant was sitting in his shop, namely, Shankar Stores, along with his tenant Ayodhya Tiwari, PW.5 when Nandji Rastogi came there and warned the informant to caution his son that he should not interfere in his matters. He threatened that if he did not do so his son may be killed. So saying, he went away threatening the informant with dire consequences. At about 6.45 p.m. electricity supply was cut off when he was sitting in his shop along with one Shambhu Lal, his son Mukund, Manjoor Ansari, PW.1 and Shankar Rastogi (deceased) his son. Since it was the Diwali day, candles and earthen lamps were lit in his shop and elsewhere. 15 minutes later appellant Nandji along with his brother appellant Bal Mukund Rastogi, accused Jagdish Chamar and two other unknown persons entered his shop armed with country made pistols. Nandji and Jagdish caught hold of his son and took him inside to the residential apartment which is just behind the shop, at gun point. When the informant and others wanted to intervene, they were prevented by appellant Bal Mukund Rastogi and his companion who stood guard with country made pistols in their hands. They threatened them to keep quiet. After Shankar Rastogi was taken inside the house by Nandji Rastogi, Jagdish Chamar and one other unknown person, he heard the report of gun fire followed by crying of women inside the house. An alarm was raised and the accused fled away threatening them. When he went inside he found his son bleeding and unconscious. People who had gathered there, took the deceased to Kudra Hospital where he was declared dead.