RAKESH TIWARI, J. - (1.) HEARD Sri , Senior Counsel, assisted by Sri A.R. Gupta, for appellant no. 1, Sri V.P. Srivastava, Senior Counsel, assisted by Kavita Tomar and Sri Ajit Kumar Srivastava, for appellant no. 2, Sri V.S. Parmar, holding brief of Sri Vivek Singh, for appellant no. 3, Smt. Usha Kiran, learned A.G.A. for the State, and perused the record.
(2.) THIS criminal appeal challenges the judgment and order dated 22.12.2010 passed by the District and Sessions Judge, Firozabad in Session Trial No. 314 of 2002 (State Vs. Bhawar Singh and others) arising out by Case Crime No. 268 of 2000. By the judgment impugned in the present appeal, the appellants have been convicted under section 302/34 IPC and awarded sentence for life imprisonment and fine of Rs.10,000.00 each. The judgment further provides that in case of default in payment of fine, the appellants shall serve one year additional imprisonment in lieu thereof. Counsel for the appellants has assailed the impugned judgment on the ground that conviction and sentence of appellants is wholly unjustified and against the evidence on record; that the prosecution has failed to establish any motive of the appellants for committing the alleged offence, and that there is no independent witness to support the version of prosecution and the witnesses P.W. 1 and P.W. 2 who are close relatives of the deceased and highly partisan. It is also challenged that the court below has not only erred in convicting and sentencing the appellants by not appreciating the evidence of the prosecution witnesses properly, but has not considered that medical evidence also does not support the oral evidence as well as prosecution story and has convicted and sentenced the appellants on the basis of the statement of P.W.1-Santosh Kumar and P.W.2-Ram Das; that sentence awarded is too severe and in any case is liable to be set aside as the prosecution has failed to establish its case beyond reasonable doubt against the appellants.
(3.) THE case of prosecution in brief is that a written report was submitted to the Station House Officer, Sirsaganj, District- Firozabad, on 18.6.2000 by the complainant-Santosh Kumar son of Sri Mukut Singh, R/o Village-Darigapur, P.S. Sirsaganj, alleging therein that on 17.6.2000 at about 11.00 P.M., the complainant along with his brother Dinesh Kumar S/O Sri Mukut Singh, R/O Village-Darigapur, were going from his house to sleep at the tube-well. When they reached in the front of house of Raghuvir Singh son of Sri Pitamber Singh, Ved Prakash son of Sri Genda Lal, Rajan Singh son of Sri Munshi Singh, Indradev Singh son of Sri Tej Singh, Bhamar Singh son of Sri Jahar Singh, all R/O village-Darigapur (Bharol) having country made pistol met them and said to his brother Dinesh that he is living with Prem Kumar and doing pairvi in his case. On this, Dinesh Kumar said that Prem Kumar is his brother so they live together. Thereafter, on the signal of Rajan Singh, one of the accused, all the accused persons fired from their country made pistol upon Dinesh Kumar who died on the spot. Upon hearing the sound of firearm, Ram Das, Raj Bahadur and other residents of the village reached at the place of occurrence who recognized the accused persons at the place of incident in the light of torches and moon light and report of the incident was given to the police station-Sirsaganj. On the basis of written report, chick report was prepared and entry in G.D. was made on 18.6.2000 at 1.15 A.M. registering criminal case against the accused persons.;