G.P.Srivastava, J. - (1.) This is Criminal Appeal against the judgment and sentence dated 15.3.2002 passed by the then Additional Sessions Judge (F.T. Court No. 2), Moradabad in S.T.No. 884 of 2000 (State v. Jamshed and Ors.) convicting and sentencing the appellants Khursheed and Rafiq, under Section 302/34 I.P.C. for life imprisonment, under Section 201 read with Section 34 I.P.C. for life imprisonment and under Section 394 read with Section 34 I.P.C. for seven years each. All the sentences were made concurrent.
(2.) The prosecution case in brief is that on 15.11.99 at 5.30 A.M. at P.S. Bhojpur, District Moradabad one Chhotey Shah, resident of village Akka, Bhikhanpur, District Moradabad submitted a written report Ext.Ka-1 alleging that when on 15.11.99 at 3.00 P.M. he was going on his duty to Police Station Bhojpur he saw a dead body lying under Dhela River bridge in the water. The said unknown man was aged about 42 years and there was mark of injury over the temporal region of the dead body. On the basis of the said written report a chick F.I.R. was prepared. A case was registered vide G.D. Ext.Ka-4. The investigation was taken over by Sub Inspector A.P. Singh who was the then Station Officer, Police Station Bhojpur. He reached at the place of occurrence, got the inquest report prepared and sealed the dead body. He prepared a site plan of the place of occurrence where the dead body was recovered. He took a Titan Wrist Watch from the left arm of the dead body and prepared memo. He sent the dead body for post mortem examination. The post mortem examination of the dead body was conducted by Dr. P.K. Shukla, Medical Officer, District Hospital, Moradabad on 16.11.99. According to the post mortem examination report the deceased was male aged about 42 years. His death had taken place one and half days before the autopsy. The death was caused due to, coma, haemorrhage and shock. The doctor found following ante mortem injuries:1) Gun shot wound of entry size 10 cm x 6 x neck cranial cavity deep at the site of left pinna of ear adjoining part of neck. On neck base of brain left temporal lobe of brain common carotid artery. Jugular vein. Larynx & Pharynges found lacerated through & through toward right side of neck (front left to right) one big metallic Bullet was recovered at the side of wound on right side of neck muscles.
(3.) One Rajeev Kumar PW-2 came to the police station and identified the deceased with the help of clothes and photograph of the dead body. He told that the deceased was his younger brother Manoj Kumar. The investigating officer recorded the statement of the witness and came to know that the licensed revolver of the deceased was robbed after committing his murder. On 30.12.99 the motorcycle of the deceased was recovered from a pond of village Dharak Nagla, P. S. Bhojpur. A memo was prepared. The investigating officer sent the pant with belt, shirt, baniyan and underwear. A pair of shoes recovered from the dead body was also sent for the chemical examination and a report was received from Vidhi Vigyan Prayogshala, Agra which shows that the blood stains were found on all the articles recovered from the dead body of the deceased and human blood was found on shirt, baniyan and underwear. It was further revealed from the statement of the witness that the accused appellants took the deceased to the house of the accused Jamshed on 14.11.1999 and thereafter the deceased was not seen alive.;