S.C.AGARWAL, POONAM SRIVASTAV, J. - (1.) THE instant appeal arises from a judgment and order dated 28.11.2008 passed by the Additional Sessions Judge, Court No. 3, Varanasi in Session Trial No. 245 of 2005-State Vs. Imran Afreen. The conviction of the appellant is under Section 302 I.P.C. and he is sentenced to life imprisonment and fine of Rs. 50,000/-. In default of payment of fine, a further imprisonment of one year. Learned Sessions Judge directed that injured shall be paid Rs. 40,000/- from the amount deposited as fine.
(2.) THE occurrence is alleged to have taken place on 1.1.2005 at 9.00 P.M. infront of Hotel Shalimar. F.I.R. was registered on the same day at 11.05 P.M. at Police Station Cantt. Varanasi by Himanshu Mohan Rai alias Munna, brother of deceased Lalit Rai. The distance of Police Station from the place of occurrence is reported to be one kilometre north east. The prosecution has examined seven witnesses in support of its case. Himanshu Mohan Rai alias Munna first informant was examined as PW-1 who is brother of the deceased and proprietor of Hotel Shalimar, Cantt. Varanasi. Chandra Shekhar as PW-2 who is also eye witness. Dr. M.P. Mishra as PW-3 who performed autopsy on the body of the deceased. Constable Ram Kishore Sharma PW-4 who proved chik F.I.R. registered at case crime No. 1 of 2005. Sri Niwas Pandey second Investigating Officer who had taken over investigation on 2.1.2005 at 12.10 P.M. and registered the case under Section 304 I.P.C. as PW-5 and D.P. Shukla first Investigating Officer as PW-6 who had taken over investigation while he was on petrolling duty and not present at the police station. He received information about the incident on his R.T. Set. R.K. Singh PW-7 is third Investigating Officer. He had taken over investigation on 9.1.2005 and submitted charge sheet under Section 302/34 I.P.C. on 8.2.2005. There are four defence witnesses Birbal alias Sankatha DW-1, guard of Hotel Ritz DW-1, Shashikant Bandi Rakshak DW-2, S.I. Ram Prabhav Rai DW-3 who is the officer who performed inquest and Dhirendra, Bijali Mistri of Hotel Ritz as DW-4. The accused appellant was arrested on 5.1.2005 along with his licensed gun .32 bore and four live cartridges by PW-5 second Investigating Officer. Memo of arrest and recovery memo of the arms and cartridges is Ex. Ka-5.
(3.) THE manner and details of the incident narrated in the F.I.R. is, that on 1.1.2005 at about 8.30 P.M. Manoj Kr. Singh alias Bahadur who was working as a waiter in Hotel Shalimar, was returning to the Hotel after buying milk. He collided with the appellant and two others who were drunk. The appellant and the two other co-accused chased Bahadur, he ran and took shelter in the Hotel. The appellant also entered the Hotel in his Car U.P.-65-0002 and his two associates on a motorcycle UPZ-5214. They started abusing and hitting Ramesh Singh alias Bahadur. The first informant Himanshu Mohan Rai alias Munna, deceased Lalit Rai and Rajnath Singh (owner of the Hotel building) tried to intervene and brought them out side the hotel. Appellant Imran is alleged to have fished out his pistol and fired at the deceased Lalit Rai who fell down as a result of the injuries. This happened at 9.00 P.M., outside the Hotel premises. Chandra Shekhar Rai PW-2, Krishna Kumar Singh and many others reached at the place of occurrence. The appellant Imran and his friends left their vehicles and ran away. Lalit Rai was carried to Kabir Chaura Hospital where he was declared dead. Scribe of the F.I.R. was Girjesh Rai Sharma . The F.I.R. was registered at Police Station Cantt., Varanasi which is Ex. Ka-1. Trial of two other co-accused, who were not named in the F.I.R. namely Gufran Afreen and Abdul Wasi was separated and same was pending on the date of the present trial before Juvenile Justice Board, Varanasi and was numbered as Session Trial No. 7 of 2005. Post mortem on the body of the deceased Lalit Rai was performed by PW-3 Dr. M.P. Mishra on 2.1.2005 at 2.00 P.M. which is Ex. Ka-2. Following ante-mortem injuries were found on his body. (1)Fire arm injury 0.5 cm. x 0.5 cm. x cavity deep on left upper front of chest 8 cm. below from clavicle 5 cm. away mid line. (2)1 cm. x 0.5 cm. x cavity deep 4 cm. above from left nipple. (3) 4 cm. x 2 cm. x cavity deep from lateral part of chest 9 cm. below from tip of axilla. (4) 1 cm. x 1 cm. x cavity deep on lateral part of chest 13 cm. below from tip of axilla and 3 cm. lateral to injury no. 3. (5) 1 cm. x 1 cm. x muscle deep on left shoulder. (6) 1 cm. x 1 cm. x cavity deep below from left shoulder 19 cm. Blackening and charring of skin present. ;