Decided on October 29,2012

Achin Sharma Appellant


- (1.) This criminal appeal preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 19.12.2005 passed by the Additional Sessions Judge/II Fast Track Court, Nainital, in Sessions Trial No. 527 of 1996, whereby said Court has convicted accused/appellant Achin Sharma under Section 302 IPC read with Section 34 IPC and sentenced him to imprisonment for life and directed to pay fine of Rs. 5,000/-, in default of payment of which, the accused/appellant Achin Sharma has been directed to undergo simple imprisonment for a period of one month.
(2.) Heard learned counsel for the parties and perused the lower court record.
(3.) Prosecution story, in brief, is that on 2 nd June, 1996, PW 3 Onkar Singh (informant) was returning from the market, and when he reached near Batla Super Store, within the limits of Police Station, Kashipur with his brother-in-law Rajendra Singh (PW 2) at 7:45 p.m., they saw accused Achin Sharma and Gaurav Bharadwaj (accused, since deceased during trial) going on a scooter. The other two accused including Banti were also going with them in a bike of Hero Puch make. Prosecution case is that accused/appellant Achin Sharma exhorted Gaurav Bhardwaj, co-accused to take revenge, to shot the fire at Gaurav Chaudhry, whereafter accused Gaurav Bharadwaj fired shot at Gaurav Chaudhary. The other three caught hold of the deceased. A first information report (Ext. A-2) was lodged by PW 3 Onkar Singh (father of the victim) at Police Station on the very day at 8:30 p.m., on the basis of which, case crime no. 501 of 1996 was registered relating to offence punishable under Section 302 IPC against four accused including Achin Sharma (appellant), Gaurav Bharadwaj and one Banti (both Gaurav Bharadwaj and Banti said to have died during trial). The crime was investigated by PW 6 Sumer Singh, Inspector C.B.C.I.D. After the first information report was lodged, police reached on the spot and took dead body of Gaurav Chaudhary in their possession and prepared inquest report (Ext. A-6). The Police also got prepared memo of sample seal (Ext. A-8), Police Form (Ext. A-9), sketch of dead body (Ext. A-10), letter to Chief Medical Officer (Ext. A- 7) with a request for postmortem examination. PW 1 Dr. J.K. Goel conducted postmortem on the dead body of deceased on 03.06.1996 and prepared autopsy report (Ext. A-1). In the postmortem examination report, the Medical Officer recorded two firearm wounds of entry and two firearm wounds of exit. According to the Medical Officer, the deceased had died as a result of ante-mortem head injury. After interrogating witnesses and inspecting the spot, the Investigating Officer submitted charge-sheet (Ext. A-5) against accused/appellant Achin Sharma and accused Gaurav Bharadwaj (since deceased) for their trial in respect of offence punishable under Section 302 IPC read with Section 34 IPC. The third accused Banti alias Ajay was shown as absconder.;

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