Decided on October 09,2013

Bhola Rai and Anr. Appellant


U.C. Dhyani, J. - (1.) PW 1 Tushar Rai wrote a complaint (Ext. Ka -1) to Chowki In -Charge, Shakti Farm, police station Sitarganj, District Udham Singh Nagar on 28.09.2008, regarding murder of his father by accused persons namely, Bhola Rai and his brother Paritosh Rai. P.W. 1 wrote the complaint with the assistance of P.W. 14 Sambal Sarkar (scribe). After the investigation, charge -sheet (Ext. Ka -26) was submitted against both the accused persons under Sections 302, 394, 411 of IPC. A separate charge -sheet (Ext. Ka -20) was also submitted against accused Bhola Rai under Section 25 of the Arms Act. The case was committed to the Court of Sessions. When the trial commenced and prosecution opened it's case, charges for the offences punishable under Sections 302, 394 and 411 of IPC were framed against both the accused -appellants, to which they pleaded not guilty and claimed trial. A separate charge was also framed against accused Bhola Rai for the offence punishable under Section 25 of the Arms Act.
(2.) P .W. 1 Tushar Rai (eyewitness), PW2 Devendra Mehrotra (eyewitness), PW3 Ravindra Nath (eyewitness), PW4 Dr. H.S. Kathayat (Medical Officer), PW5 Constable Pooran Singh (who prepared chik FIR), PW6 Constable Harish Gurrani (signatory to recovery memo (Ext. Ka -17), PW7 Shivpad Vishwas [signatory to recovery memo (Ext. Ka -10)], PW8 Samar Chand Mandal (signatory to the inquest report), PW9 Constable Deepak (who recovered country made pistol and looted property from accused Bhola), P.W. 10 S.I. Sudhir Kumar (who arrested accused Bhola Rai), P.W. 11 S.I. Shankar Nath (who took permission from the District Magistrate to prosecute accused Bhola under Section 25 of Arms Act), P.W. 12 S.H.O. D.R. Arya (who submitted charge -sheet), P.W. 13 Shivpad Mandal [signatory to the memo (Ext. Ka -9)] and P.W. 14 Sambal Sarkar (scribe of the FIR) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that prosecution witnesses told a lie and they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Sessions Judge, Udham Singh Nagar, vide judgment and order dated 07.04.2011, convicted both the accused -appellants namely, Bhola Rai and Paritosh Rai under Section 302 of IPC. Both of them were sentenced to undergo imprisonment for life alongwith a fine of Rs. 10,000/ - each. Accused Bhola Rai was, however, exonerated of the charge of offences punishable under Sections 394 and 411 of IPC as also of the charge of offence punishable under Section 25 of the Arms Act. Accused Paritosh Rai was also exonerated of the charge of offence punishable under Section 394 of IPC. Aggrieved against their conviction and sentence under Section 302 of IPC, present criminal appeal was preferred by the convicts -appellants. Prosecution led the evidence through P.W. 1, PW2, PW3 and P.W. 14, which were supported by the scientific, medical and peripheral evidence.
(3.) PW 4 conducted postmortem on the dead body of Vimal Krishan Rai on 29.09.2008, at 03:45 P.M. and proved PMR (Ext. Ka -2). PW4 found lacerated wound over occipital region, which was bone deep and in which the blood clots were present; multiple abrasion with contusion; abrasion; laceration; multiple abrasions and contusions on vital parts. According to PW4, the cause of death of victim was ante mortem head injury with smothering (caused by shutting the mouth and nose of a person with some cloth or hand forcibly).;

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