- (1.)The present appeals, by special leave, have been preferred against the common judgment and order dated 14.2.2006 passed by the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of 2003, wherein the High Court has partly allowed the appeal of Raju @ Rajkumar by converting his conviction under Section 302 IPC to one under Section 304 Part I of IPC and further confirming his conviction under Sections 25 and 27 of the Arms Act and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in default of payment of fine, to suffer further six months rigorous imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj Kumar, who had preferred an independent appeal, has been acquitted of all charges.
(2.)At the very outset we may state that Raju @ Rajkumar has expired on 8.3.2012 and in proof thereof a death certificate has been brought on record. In view of the same, the Criminal Appeal No. 1073 of 2007 would stand abated as far as Raju @ Rajkumar is concerned and would only survive against the accused Hemant Kumar.
(3.)The prosecution case, in brief, is that the police recorded the statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on May 26, 1998 who had stated that around 8:30 p.m. on that day he along with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3, had gone to the vacant plot belonging to him and his brother situated at Lisadia ka Bas being apprehensive that that sons of Ram Niwas and Shanti Prasad would take possession of the plot. At that point of time sons of Ram Niwas and Shanti Prasad were present at the house of Phoolji Lisadiya situate adjacent to the plot. As per his version, they first abused him and thereafter opened fire as a result of which he had sustained a gun shot injury on the right side of his chest and his brother Ramesh @ Umesh, PW 5, had brought him to the hospital. On the basis of his statement the concerned police officer registered FIR No. 243 of 1998 for the offences punishable under sections 307 and 149 of IPC. However, after the death of Anirudh, the offence was converted to one under section 302 IPC and investigation commenced. During the course of investigation, Raju and Hemant were arrested and Manoj was declared as an absconder. A charge sheet was filed against Raju and Hemant for the offences under sections 302, 302/34 IPC and for offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it became the subject matter of S.C. No. 34 of 1998. After Manoj was arrested, a charge sheet was submitted against him for the offence under Section 302/34 of IPC and he faced a separate trial in S.C. No. 8 of 2002.