A.K.ROOPANWAL, J. - (1.) AS both the above appeals arise out of the same judgment, hence, these are being decided by a common Judgment. These appeals have been filed by the appellants Chandra Bhushan Mishra, Jai Prakash Mishra, Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra against the judgment and order of conviction and sentence dated 13.7.07 passed by the then Additional District & Sessions Judge, Court No.3, Varanasi in S.T. No.384/99 whereby appellants Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra were convicted for the offence punishable under Section 302, 506, IPC and were sentenced to life imprisonment and a fine of Rs.5,000/- for the offence punishable under Section 302, IPC and 1 year R.I. for the offence punishable under Section 506, IPC. Appellants Chandra Bhushan Mishra and Jai Prakash Mishra were convicted for the offence punishable under Section 302/34, 506, IPC and were sentenced to life imprisonment and a fine of Rs.5,000/- for the offence punishable under Section 302/34, IPC and 1 year R.I. for the offence punishable under Section 506, IPC.
(2.) FIRST informant Sanjay Kumar Mishra is the son of deceased Jitendra Nath Mishra, r/o Bahedawa, P.S. Mirza Murad, District Varanasi. He gave a written report at P.S. Mirza Murad alleging therein that he is studying in U.P. College at Varanasi and his father Jitendra Nath Mishra practices law also at Varanasi. Both used to go to Varanasi by train and used to come together to their house. They used to alight at Bahedawa halt in order to go to their village. Deceased was having land and Nali dispute with accused Chandra Bhushan Mishra and a case was pending between them due to which they were on inimical terms. On 8.1.09 he and his father Jitendra Nath Mishra (deceased) along with Rangnath Upadhyay, Sanjay Dwivedi and Ram Shanker Pathak left the train at Bahedawa halt and started for their village on foot. At about 6.45 p.m. when they reached near Kharanza leading to their village, Chandra Bhushan Mishra, Jai Prakash Mishra, Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra met them. Chandra Bhushan Mishra and Jai Prakash Mishra exhorted to kill Jitendra Nath Mishra. On their exhortation, Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra fired at the deceased with country made pistols. The accused were tried to be apprehended but they managed to escape. The assailants were recognised in the light of torches. The deceased received injuries and was taken to Kabir Chaura Hospital at Varanasi on scooter where he was declared dead. On the written report of the informant Chik FIR was written at P.S. Mirza Murad on 8.1.99 at 8.45 p.m. The investigation of the case was taken up by the then S.O. Mirza Murad S.I. Devendra Singh. He copied out the FIR and G.D. of the registration of the case, in the case diary got the Panchyatnama and other connected papers of the deceased prepared through S.I. B.B. Singh. He recorded the statement of the complainant at the police station and thereafter, came at the spot where on the pointing out of the first informant prepared site plan of the place of occurrence, exhibit Ka-8. He collected the blood stained and plain earth from the place of occurrence and also took into possession torch and briefcase of the deceased and prepared its memo. He also prepared the memo of torch of the informant. He recorded the statements of the witnesses of occurrence and after investigation submitted the charge sheet. The case was committed to the court of Sessions by the then CJM, Varanasi where the appellants Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra were charged for the offences punishable under Section 302 and 506, IPC and appellants Chandra Bhushan Mishra and Jai Prakash Mishra were charged for the offences punishable under Sections 302/34 and 506, IPC. The appellants denied from the charges and claimed to be tried.
(3.) THE prosecution in order to prove the charges examined P.W.-1 Sanjay Kumar Mishra (complainant of the case), who testified the prosecution version and proved the written report, exhibit Ka-1. He also proved the memo of briefcase and torch belonging to the deceased. He also proved the memo of his own torch, exhibit Ka-3. It was also stated by him that there is a drain towards the north of his house which was closed by the accused persons. The deceased, then filed a suit in the Civil Court. The deceased had also filed a case relating to land against the accused persons and on account of these cases the accused were having enmity with the deceased and his family.;