R.M.CHAUHAN,J. - (1.) THE Challenge under the present appeal is the judgment and order dated 27.1.2006 passed by the learned Additional Sessions Judge, Court No. 2, Hardoi in Session Trial No. 902 of 2004 (Crime No. 196 of 2004), under Section 302 IPC & Session Trial No. 903 of 2004 (Crime No. 197 of 2004), under Section 25 Arms Act; State Vs. Babloo @ Ajay Kumar Tewari, Police Station Baghauli, District Hardoi whereby the learned Additional Sessions Judge has held the accused guilty under Section 302 IPC. Consequently he has convicted and sentenced the accused to undergo imprisonment for life and to pay fine of Rs. 5,000/-. The sentence further directs that in case the accused fails to pay the amount of fine he will further undergo rigorous imprisonment for six months. 2. The prosecution case as disclosed at the trial my be summarized as under: 3. The fateful incident is alleged to have taken place on 13.6.2004 at about 3:00 P.M. in village Jarera within the Police Station Baghauli, Disrict Hardoi. As per prosecution case, Ram Adhar (deceased) along with his brother Virendra Kumar (PW-1 informant) left his village Danmandi on 13.6.2004 at about 2:30 P.M. and proceeded to village Narainpur to purchase an ox. The village of incident i.e. Jarera is situated in between the two villages i.e. Danmandi and Narainpur. The deceased and the informant at about 3:00 P.M. were passing through Village Jarera and when they reached in front of the house of Babloo @ Ajay Kumar Tewari he met them on the way who had taken liquor and was under intoxication. He demanded some money from the deceased (Ram Adhar) for purchasing liquor but Ram Adhar avoided to satisfy his demand and continued his journey to Narainpur but Babloo @ Ajay Kumar Tewari was also following them. He was insisting Ram Adhar to satisfy his demand while Ram Adhar was avoiding. When he reached in front of the house of Suresh Bhurji. Babloo @ Ajay Kumar Tewari stick to his demand but Ram Adhar refused to satisfy his demand, Babloo @ Ajay Kumar Tewari, who was having country-made pistol in his hand, opened fire on Ram Adhar which hit on his abdomen resulting in his instantaneous death. The occurrence is said to have been seen by Sandeep and Bishnu Narain who belonged to village Danmandi and had reached there at the time of occurrence.
(2.) THE informant, after the incident had taken place wrote a written report (Ext. Ka-1) of the incident and went to the Police Station Baghauli and handed over the same to the then constable clerk Sita Ram (PW-6) in presence of Station Officer, Sri Mohd. Javed Sidiqui (PW-3), who on the basis of written report, prepared the First Information Report (Ext. Ka-15) and registered a case under Section 302 IPC at Crime No. 196 of 2004 in the general diary (copy Ext. Ka-16) against the accused for investigation . The Station Officer, Sri Sidiqui took the investigation of the case himself. He after registration of the case proceeded to the place of occurrence along with relevant papers and his colleague S.I. Sri Naresh Singh and constables and reached there on the same day at about 5:30 P.M. The Investigating Officer on the pointing out of the informant inspected the place of occurrence, prepared the site plan (Ext. Ka-2) and in the presence of the witnesses took the blood stained soil as well as plain soil from the place of occurrence in separate containers and sealed them. He prepared the requisite memo (Ext. Ka-3) on the spot and thereafter inspected the dead body of the deceased (Ram Adhar). He appointed panchas and observing formalities as required under the law got prepared inquest report (Ext. Ka-4) by his colleague S.I. Sri Naresh Singh. He also got prepared requisite papers for sending the dead body of the deceased for postmortem examination like police form 13, letter to RI, letter to C.M.O., Photolash of dead body, sample of sand, etc. (Ext. Ka 2 to 9) on the spot and sealed the dead body. The Investigating Officer thereafter handed over the sealed dead body along with papers to constable Indra Bhushan Tewari and village Chowkidar Chhedi Lal for taking to the mortuary for postmortem examination. Sri Siddqui recorded the statements of informant Virendra Kumar, and the witnesses Sandeep Kumar and Bishan Dayal. Sri Sidiqui, on the next day i.e. on 14.6.2004 arrested the accused (Babloo @ Ajay Kumar Tewari). He interrogated him and recorded his statement who confessed the commission of murder of the deceased. He disclosed to him that he had hidden the country-made pistol used in the commission of the murder of the deceased in his house. He could get the same recovered. Consequently, Sri Sidiqui on the same day took the accused to his house along with his subordinate constables Bhuneshwar Tiwary and Baijnath Singh. The accused in the presence of the witnesses Ram Ashrey and Awadhesh Kumar entered into his house and took out a country-made pistol of 12 bore from a room of his house which was containing one empty cartridge in its barrel. Sri Sidiqui thereafter prepared recovery memo of country-made pistol and empty cartridge (Ext. Ka-10) in presence of the witnesses. He thereafter took the accused to the police station and lodged him in police lock up. Thereafter he was produced before the Magistrate and was remanded to judicial custody. Sri Lalji Prasad (PW-4) the then Constable of P.S. Baghauli on the basis of recovery memo of country-made pistol and empty cartridge prepared separate First Information Report (Ext. Ka-11) and registered a separate case under Section 25 of the Arms Act at Crime No. 197 of 2004 in the general diary of the police station (copy Ext. Ka-12) for investigation. Dr. Arun Kumar Maurya (P.W.-7) the then Orthopedic Surgeon of the District Hospital, Hardoi conducted autopsy examination of the deceased on 14.6.2004. He found following ante-mortem injury on his person: "Fire arm wound of entry 2cm x 1 cm cavity deep on the upper part of the abdomen 12 cm away from the naval situated at 11 O'clock from naval. The margin was introverted. Blackening and tattooing were present around the wound. The direction of wound was from front to back. On his internal examination he found that clotted and liquid blood was present in the stomach and peritoneum was lacerated. As per opinion of the Doctor, the cause of death of the accused was shock and hemorrhage as a result of anti-mortem injuries. Dr. Maurya also found 21 pellets inside the body of the deceased." Dr. Maurya after conducting the autopsy examination of the deceased prepared postmortem examination report (Ext. Ka-7) and handed over the same to the constable to be taken to the police station. Sri Siddiqui during the investigation although had recorded the statement of the complainant and some of the witnesses but he could not complete the investigation. The investigation was thereafter taken over by Sub Inspector, Sri Yogendra Pratap Singh (PW-5), the subsequent S.O. of police P.S. Baghauli who visited the place from where the country-made pistol used by the accused in commission of the murder of the deceased was hidden by him. He prepared the site plan (Ext. Ka-13). Sri Singh concluded the investigation of the case registered under Section 302 IPC and submitted the charge-sheet (Ext. Ka-14) against the accused.
(3.) THE investigation of case Crime No. 197 of 2004 under Section 25 Arms Act was concluded by Sri Jitendra Singh, the then S.I. in-charge of O.P. Railwayganj, P.S. Baghauli, District Hardoi. He prepared the site plan (Ext. Ka-18) of the place of recovery, recorded the statement of witnesses. He thereafter on the basis of evidence collected by him against the accused obtained the requisite sanction (Ext. Ka-19) for prosecution of the accused as required under the Arms Act from the District Magistrate, Hardoi and thereafter submitted charge-sheet (Ext. Ka-20) under Section 25 of the Arm Act against the accused. Both the cases i.e. case under Section 302 I.P.C. as well as case under Section 25 of the Arms Act being related with the same incident were committed by the Chief Judicial Magistrate, Hardoi for trial to the Court of Sessions which gave rise to the Sessions Trial No. 902/04; State Vs. Babloo alis Ajai Kumar Tewari under Section 302 IPC and Sessions Trial No. 903/04; State Vs. Babloo alis Ajai Tiwary under Section 25 Arms Act respectively. The Sessions Trial was transferred by the learned Sessions Judge, Hardoi to the Court of learned Additional Sessions Judge, Court No. 2, Hardoi for trial. The accused was charged by the learned Additional Sessions Judge under Section 302 I.P.C. as well as under Section 25 of the Arms Act to face the trial who pleaded not guilty to the charges and claimed to be tried. ;