- (1.) The applicants, Braj Pal and Kishan Lal have filed this application under Section 389 (1) of Criminal Procedure Code in Criminal Appeal No. 5851 of 2011. We have heard learned counsel for the parties. The short facts leading to present application are that the deceased Shishupal aged about 20 years was resident of Dhakpura Meerapur, Police Station Mujariya, district Budaun. Deceased Shishupal was agricultural labour. On the fateful day 23.4.2003 the applicants came to the house of the deceased at 7 p.m. in the evening and asked Shishupal to accompany them for harvesting of wheat crops at their Farm. Initially he was reluctant to accompany and work at their Farm but on their insistence he gave in. He did not return to his home and on the next day his dead body was found near the field of Bhojraj. There was a gun shot injury near his nose. His mother Anguri Devi wife of Late Ram Sahai Jatav lodged an First Information Report on 24.4.2003 at Police Station Mujaria district Budaun. The police arrested both the applicants on 26.4.2003 and on search one 12 bore country made pistol and one cartridge was found from the possession of the Braj Pal. On 24.4.2003 a case crime No. 41 of 2003 was registered under Section 302/34, 201 IPC read with Section 3 (2) 5 of SC/ST/PA Act at Police Station Mujaria district Budaun.
(2.) Both the applicants were tried by the Special Judge SC/ST Act Budaun. The trial Court by its judgment and order dated 16th September, 2011 found both the applicants guilty under Section 302 read with Section 34 and sentenced them to life imprisonment with fine.
(3.) Briefly stated the prosecution case was that the deceased Shishupal was shot dead by the applicants and thereafter they have put his body in a plastic bag (plastic palli) and dumped the body in the field of the Bhojraj. There was a scarf around his head and there was a piece of plastic seat of a tractor on the injury of the deceased and in the trolley of the tractor a plastic bag was found stained with blood. However, the I.O. did not make those materials as? case property.;