B.K. Narayana, J. - (1.) HEARD Sri A. B.L. Gour, Senior Advocate, assisted by Sri Saurabh Gour, learned counsel for the appellant, Sri J.K. Upadhyay, learned A. G. A. for the State and Sri Gopal Swarup Chaturvedi, Senior Advocate assisted by Sri Ajat Shatru Pandey, learned counsel for the complainant.
(2.) THIS criminal appeal has been preferred by the appellant, Ajit against the judgement dated 3.2.2011 and order dated 4.2.2011 passed by the Additional Sessions Judge, Court No. 3, Bulandshahr in S.T. No. 1321 of 2008 convicting him under Section -302 read with Sections -34 and 120B I.P.C. and Section -25 of Arms Act and sentencing him to punishment of death to be hanged by neck till death for the offence under Section -302/34 I.P.C. together with fine of Rs. 1,00,000/ - to be paid to the family members of the victim, imprisonment for life under Section -302 read with Section 120B I.P.C. along with fine of Rs. 50,000/ - and in default of payment of fine, additional simple imprisonment of one year and imprisonment of two years under Section 25 of Arms Act together with fine of Rs. 10,000/ - and in case of default, further simple imprisonment of three months. All the sentences were directed to run concurrently. Reference made by the Additional Sessions Judge, Court No. 3, Bulandshahr to this Court for confirmation of death sentence passed by him against the appellant was registered as Reference No. 04 of 2011 before this Court and connected with this appeal by order dated 25.2.2011 passed by this Court is also being considered along with this appeal. According to the prosecution case as spelt out in the first information report which was lodged by P.W. 4 Amit Nagpal, the son of the deceased Kishori Lal, the incident in question is said to have taken place at about 9.30 P. M. on 27.3.2008 near village Karanpur on the road while the deceased along with his three companions namely, Dr. Satyaveer, P.W. 3 Rajendra Prasad Pandey and Vijay Kumar Dheengra was returning from Anoop Shahr and going to Delhi in the ALTO car of co -accused Dr. Satyaveer. The deceased had left his home in the morning of 27.3.2008 along with Vijay Kumar Dheengra and Rajendra Prasad Pandey for going to Anoop Shahr along with Dr. Satyaveer after picking up him from his residence in Ghaziabad where they were to inspect a bridge over Ganga river in respect of which co -accused Dr. Satyaveer had promised to procure a contract in favour of the deceased for collection of toll tax and also a low priced land. On the suggestion of co -accused Dr. Satyaveer the deceased Kishori Lal had left his car in Ghaziabad and had proceeded to Anoop Shahr with Dr. Satyaveer, Rajendra Prasad Pandey and Vijay Kumar Dheengra in the ALTO car of Dr. Satyaveer. By the time the deceased and his companions had reached Anoop Shahr and inspected the bridge in question, it had become dark and since the low priced land which Dr. Satyaveer had promised to obtain for the deceased was located at a place which was at a distance of about 30 -35 Kms., Dr. Satyaveer suggested that the land could be seen on some other day and thereafter they turned their car and started driving towards Delhi. While on way to Delhi Dr. Satyaveer told his companions that he had a bottle of liquor with him and suggested that they should all have liquor, to which all agreed and started consuming liquor. On the request of Dr. Satyaveer to reduce the speed of the car as his drink was spilling over his glass, the deceased who was driving the car, slowed down, whereupon a grey colour INDICA car which was seen by them frequently on the way over took the deceased's car and stopped abruptly in front of his car forcing him also to stop his car and at that point of time a man who was wearing a white shirt and having light beard and revolver in his hand, alighted from the INDICA car with his revolver and shot twice at his father with his revolver causing two firearm injuries to him. The killer thereafter got into the INDICA car and sped away towards Bulandshahr. The deceased's son was telephonically informed about the incident by Sheetu, son of Rajednra Prasad Pandey on his instruction and later on Rajendra Prasad Pandey had also talked to him. On receiving the aforesaid information the informant along with his other family members, rushed to Anoop Shahr and upon reaching government hospital Anoop Shahr, where his father had been taken to by his companions after the incident, found him dead. Rajednra Prasad Pandey and Vijay Kumar Dheengra were also present in the hospital. Rajendra Prasad Pandey and Vijay Kumar Dheengra had told the informant that Dr. Satyaveer had palavered his father Kishori Lal to go to Anoop Shahr on the promise of procuring a contract for collection of toll tax in respect of a bridge over Ganga river and a low priced land and while returning from Anoop Shahr Dr. Satyaveer was frequently talking to different persons and hence the complainant believed that Dr. Satyaveer had a hand in the murder of his father along with his ex -friend Sukhmal Chand Jain whom he suspected was also involved in the conspiracy. The Chek F.I.R. (Ext. Ka 8) which was registered at P. S. -Anoop Shahr on the basis of the written report (Ext. Ka 7) submitted by P.W. 4 Amit Nagpal, son of the deceased, perusal whereof clearly indicates that the informant Amit Kumar Nagpal was not the eyewitness of the incident and the facts which had been stated by him in the first information report except those that his father had left his home in Delhi at about 10.00 A. M. and he suspected that the deceased's Ex -friend Sukhmal Chand Jain also had a hand in the conspiracy, were intimated to him by Rajendra Prasad Pandey (P.W. 3) who along with Dr. Satyaveer (co -accused) and Vijay Kumar Dheengra had witnessed the incident.
(3.) ON the basis of aforesaid written complaint of P.W. 4 Amit Nagpal, chek F.I.R. (Ext. Ka 8) was prepared at the police station by the police constable Dhyan Singh P.W. 6 and registered as Case Crime No. 100 of 2008 under Section 302 I.P.C. against Dr. Satyaveer and Sukhmal Chand Jain and entry thereof was made in the G. D. at serial No. 2, at about 00.45 A. M. on 28.3.2008, photostat copy whereof was brought on record as Ext. Ka 11. The investigation was entrusted to S.O. Karan Singh Chauhan P.W. 5 who along with S.I. Lal Mohd. P.W. 1, Constable Mahesh Chand and Constable Raj Kumar proceeded to the hospital where the corpse of the deceased Kishori Lal was kept. S.I. Lal Mohd. prepared the inquest report (Ext. Ka 1), sketch of the corpse (Ext. Ka 5) and challan corpse (Ext. Ka 4). He also prepared the letters addressed to the C. M. O. and R.I. Police (Ext. Ka 2 and Ext. Ka 3 respectively). According to the inquest report the deceased was wearing white coloured half safari shirt, half vest, white coloured safari pant, jockey underwear, white socks and Italian leather white shoes. The inquest report further indicated that the deceased had three blood smeared injuries on his right cheek, left side of forehead, front side of right hand, and an injury over the right elbow. According to the inquest report the deceased had died as a result of firearm injuries found on his body. The dead body of the deceased was packed and sealed and sent for autopsy. The post mortem of the dead body of the deceased was performed on 28.3.2008 at 2.00 P. M. by Dr. Aditya Pal Singh P.W. 2 who prepared the post mortem report (Ext. Ka 6), along with autopsy report and handed over to the police a sealed bundle containing the apparels and the shoes worn by the deceased at the time of the incident. According to the post mortem report of the deceased four firearm injuries were found on the dead body of the deceased including one exit wound.;