RAKESH TIWARI, J. - (1.) HEARD Sri Apul Mishra, Sri B.D. Sharma, learned counsel for the appellants, Sri R.Y. Pandey, learned AGA assisted by Sri S.A. Murtaza, Brief holder for the State and perused the record.
(2.) THIS criminal appeal has been preferred against the judgment and order dated 13.2.2009 passed by the Additional Sessions Judge, Court no. 6, Pilibhit in S.T. Nos. 457 of 2002, State Vs. Ashok Kumar Sharma alias Guddu and others, 458 of 2002, State Vs. Navneet alias Bhurey and 459 of 2002, State Vs. Ashok Kumar alias Guddu, by which the appellants have been convicted under Section 302/ 34, 307/34 IPC and section 25, Arms Act and sentenced to life imprisonment with fine of Rs. 5000/- each under Section 302/34 IPC, ten years' RI with fine of Rs. 2000/- each under section 307/34 IPC with default stipulations and two years' RI with fine of Rs. 1000/- to appellants Navneet alias Bhurey and Ashok Kumar Sharma, under section 25, Arms Act with default stipulation. All the sentences were ordered to run concurrently. This criminal appeal has been preferred on the ground that conviction and sentence of the appellants is against the weight of evidence on record and law; that trial court has failed to give due weight to the circumstances that nature of the injuries render the use of rifle doubtful in this case; that charge under section 307 is doubtful and not sustainable in as much as no one had sustained any injury except the deceased ; that presence of the witnesses appears to be highly doubtful in the facts and circumstances of the case; that in the absence of the independent witnesses having been examined, no reliance should have been placed on the testimony of witnesses produced by the prosecution; that in any case, number of injuries found on the body of the deceased is inconsistent with the number of assailants having taken part in the incident and the appellants who are innocent, have been falsely implicated and that prosecution evidence is not consistent with the medical evidence , hence no reliance should have been placed on the statement of the witnesses and that sentence awarded to the appellants is too severe.
(3.) THE prosecution story is that a written report was submitted by complainant Dinesh Kumar Sharma alias Dinnu son of Mewaram on 21.3.2000 at about at 7 P.M. at police station Diuaria Kalan, district Pilibhit, to the effect that a court case was pending between Ashok Kumar Sharma alias Guddu and others with his Bua Smt. Santosh, regarding agricultural land, in which father of the complainant had given evidence in favour of Smt. Santosh, due to which Ashok Kumar Sharma and his family bears enmity with them; that today i.e. on 21.3.2000 in the evening when complainant alongwith his cousin Ram Dev son of Sri Dev Dutt Sharma was in village Pakaria and wanted to listen a cassette of their choice in place of an obscene cassette being run at the instance of Chandra Prabhakar alias Sukanto, elder brother of Ashok Kumar Sharma, tension was created. Sudhakar Sharma, brother of Chandra Prabhakar alias Sukanto, who was also present there, went and complained to accused appellant Ashok Kumar Sharma about it, whereupon Ashok Kumar Sharma and others with common intention hid themselves near culvert. At about 6 P.M. when the complainant alongwith his brother Ram Deo was returning to their village and reached the culvert, they were met by Ashok Kumar Sharma armed with single barrel gun, his elder brother Rakesh Kumar alias Pappu armed with rifle, Sudhakar Sharma armed with double barrel licensed gun and their nephew Navneet son of Chandra Prabhakar armed with country made pistol. Then Sudhakar Sharma exhorted to surround them. Realising the danger, the complainant ran to save his life towards his house shouting for help and the aforesaid accused persons fired upon him with intention to kill but missed. On hearing report of the gun fire, Mewa Ram, father of the complainant alongwith elder brother Rajendra came towards the spot and were again fired upon by the aforesaid four assailants, as a result of which his father and Rajendra were seriously injured and fell down near the Pakar tree. Mewa Ram died on the spot. A shot grazing left side stomach of the complainant had exited from his clothes without causing any injury to him. The incident was said to have been witnessed by Rajendra Prasad son of Umashanker Sharma and Smt. Bhagwanna Devi wife of Mool Chandra, who were resident of the village. On the basis of the written report, G.D. entry was made and first information report was registered at case crime no. 49 of 2000, under section 307/302 IPC against the appellants. The incident aforesaid took place on 21.3.2000 at about 6 P.M. and F.I.R. of the incident was lodged on the same day at about 7 P.M. in police station Deoria Kalan, district Pilibhit at serial no. 29/2000. ;