- (1.) HEARD Shri Dilip Kumar, Shri Vivek Kumar Singh & Shri Pramod Bharadwaj Advocates on behalf of the appellants. A.G.A. on behalf of the prosecution and Shri Raghuraj Kishore, Advocate on behalf of the complainant. This criminal appeal is directed against the judgment and order of the Additional District & Sessions Judge, Baghpat in Sessions Trial No. 229 of 2004 decided on 01.10.2009 arising out of Case Crime No. 13 of 2004 under Section 302/307 I.P.C., P.S. Ami Nagar Sarai, District Baghpat. The appellants Kapil Dev and Udham Singh have been convicted of an offence under Section 302/307 IPC. They have been sentenced with life imprisonment and fine of Rs.25,000/- each under Section 302 I.P.C. and imprisonment of 7 years with fine of Rs.5000/- each under Section 307 I.P.C. Under the same judgment, Sessions Trial No. 230 of 2004 has also been decided. Udham Singh has been convicted of an offence under Section 25 Arms Act and has been sentenced to one year imprisonment.
(2.) THE facts borne out from the records of this appeal are as follows : A First Information Report was lodged on 13.02.2004 at 7:00 p.m. with Police Station Ami Nagar Sarai, District Baghpat by one Ravindra Singh. It was informed that on 13.02.2004 at around 5:30 p.m. when the informant along with Ram Pal and Dharam Pal had gone to see off the son of Brahma Pal Singh namely Rajeev at the bus stand of the village Putti, P.S. Binauli. While they were standing, a request was made to Rajeev to fetch a bundle of Bidi from the shop situate at some distance from the place where the informant and other were standing. As soon as Rajeev, who was aged about 16 years reached the shop for purchase of Bidi, he was surrounded by the accused Kapil Dev and Raj Dev, sons of Jabar Singh and one Chandveer. They stated that Rajeev was providing security to Ravindra, he shall be taught a lesson for providing such security. After such statement Kapil Dev and Raj Dev caught hold of Rajeev and Udham Singh fired from his country-made pistol from very close range. The bullet hit Rajeev on hip joint. The informant and others rushed towards the bidi shop but Chandveer threatened them by firing in the air. The informant took shelter behind the wall of the shop. The assailants left the place. Rajeev was thereafter brought to the police station where F.I.R. was lodged under Section 307 I.P.C. Rajeev was taken to the District Hospital, Baghpat. The doctor referred him to the Hospital at Shahdara, Delhi. While he was being taken to Shahdara, he expired. Information of death was communicated to the police station by phone at around at 9 O' Clock in the evening. On such information being received, the offence was converted into 302 I.P.C. A G.D. entry was made for the purpose. The inquest report of the dead body was prepared at 9:10 hrs. in the morning on 14.02.2004. The body was sent for postmortem to the District Hospital, Baghpat. The postmortem was performed at around 1:00 p.m. The anti-mortem injuries suffered by Rajeev as per the report is as follows : "Chot No. 1- Ek Agneyastra Ka Goli Ghusne Ka Ghav Pet Per Bayin Taraf Bahar Ki Oar 2 c.m. x 1.5 c.m. x Cavity Jisse Ormruntus Bahar Aa Raha Tha. Ghav Mein Charon Oar 5 c.m. x 4 c.m. Kshetraphal Mein Kalima Maujood Thi. Yeh Ghav Bayen Nippil Se 20 c.m. Neeche 5:00 Baje Ki Awastha Mein Tha Tatha Nabhi Se 16 c.m. Ki Doori Per 2 Baje Ki Awastha Mein Tha. Ek Bullet Dahini Taraf Peeth Mans Peshi Se Dhasi Hui Baramad Hui Jo Skepla Se 4 c.m. Neeche Thi." According to the report of the doctor who had performed the postmortem, cause of death was excess bleeding and shock due to gun shot injury suffered by the deceased. The postmortem report further discloses that one bullet was recovered from the back of the chest of deceased. The informant Ravinder is stated to have been murdered on
(3.) 08.2004. Similarly, it is also recorded that accused Chandveer who is stated to have fired in the air to stop the informant and other persons from proceeding towards Rajeev at the relevant time was also murdered during the pendency of the trial. 4. After the investigation was completed a charge-sheet under Sections 302, 307 I.P.C. against the accused and one under Section 25 of the Arms Act against Udham Singh alone was filed. The offence being triable by Sessions Court was referred accordingly. Under the order dated 03.08.2006 charges were framed against the accused. Ram Pal, the eyewitness was examined as PW-1. He disclosed the factum of death of Rajeev but also proved the information dated 13.02.2004 supplied to the police about the incident of firing upon Rajeev. He also reiterated what had been stated in the F.I.R. and pointed out that Rajeev was caught hold by Raj Dev and Kapil Dev and he was fired upon by Udham Singh. He also disclosed that Rajeev was examined at District Hospital and was referred to hospital at Shahdara, Delhi. Before they could reach the hospital at Delhi, Rajeev expired near village Loni.;