BALA KRISHNA NARAYANA,J. - (1.) Heard Sri D.P.S. Chauhan, learned counsel for the appellant, Sri Sagir Ahmad, Km. Meena, learned A.G.A. assisted by Mrs. Manju Thakur, brief holder for the State. Appellant, Braj Pal son of Bariyar Singh has approached this Court under Section 374(2), Code of Criminal Procedure by instituting this appeal challenging the veracity and sustainability of his conviction and sentence order dated 4.7.2008 recorded by Sessions Judge, Mainpuri in S.T. No. 165 of 2005 (State vs. Braj Pal), arising out of Case Crime no. 47 of 2005, under Section 302 I.P.C. and S.T. No. 167 of 2005 (State vs. Braj Pal), arising out of Case Crime no. 48 of 2005, under Section 25 Arms Act, P.S. Kishni, districtMainpuri.
(2.) The facts of this case are that one Chottey Singh PW1 lodged a written report (Ext.Ka1) on 16.3.2005 at about 14 hours at police stationKishni, districtMainpuri stating therein that on 16.3.2005 he along with PW2 Shiv Raj Singh son of Sadhav Singh and Sarvesh Kumar Pradhan son of Jore Singh had gone to Block Kishni for incorporating amendments in the voter list to be prepared for the next election. At about 1:00 p.m., while they were doing the work relating to amendments in the voter list in a room in the Block Office, accused Shilu son of Ram Bahadur, Brajpal son of Bariyar Singh and Rajesh son of Rameshwar Dayal came there and Rajesh insisted on incorporating his name in the amended voter list of Gram Sabha, Paharpur to which Sarvesh Kumar Pradhan refused, on which the accused started hurling abuses at them. At the instigation of Shilu and Rajesh to kill Sarvesh Kumar Pradhan, accused Braj Pal opened fire at Sarvesh from his ('tamancha') inflicting fire arm injury on him to which he succumbed on the spot. The complainant and the other people present there tried to catch the accused but Shilu alias Shilendra and Rajesh escaped in a Bolero car which was parked outside extending threats of dire consequences, while accused Braj Pal was caught on the spot along with a country made pistol with empty cartridge in the barrel and four live cartridges and taken to the police station. The written report contained a further recital that the dead body of his deceased brother Sarvesh Kumar Pradhan was lying on the spot.
(3.) On the basis of the above written report (Ext.Ka1), Case Crime no. 47 of 2005, under Sections 302, 504 and 506 I.P.C. was registered against Sarvesh, Braj Pal and Rajesh, while another case namely, Case Crime no. 48 of 2005, under Section 25 Arms Act was registered against the accused Braj Pal alone at police stationKishni and an entry to that effect was made in the G.D. on 16.3.2005. Immediately after the registration of the F.I.R, the Police Officer entrusted with the investigation of the case PW5 Udai Bhan Singh swung into action, visited the spot and conducted the inquest of the dead body of the deceased and prepared the inquest report and thereafter dispatched the cadaver of the deceased Sarvesh Kumar Pradhan together with the necessary police papers to the district mortuary for conducting the postmortem. He recorded the statements of the witnesses, inspected the spot, prepared site plan (Ext.Ka7), collected samples of simple and blood stained soil, blood stained (chadar), one pair of shoes, simple and blood stained paper and pen and prepared separate recovery memos. After completing the necessary formalities of investigation he submitted charge sheet in Case Crime no. 47 of 2005, under Sections 302, 504 and 506 I.P.C. against the accused Braj Pal, Shilu alias Shilendra and Rajesh, while separate charge sheet under Section 25 Arms Act was laid by him against the accused Braj Pal alone in Case Crime no. 48 of 2005. Since the accused Sarvesh and Rajesh were absconding, their trial was separated from that of accused Braj Pal and committed to the court of session on 8.7.2005 and registered as S.T. No. 165 of 2005 along with the other case against accused Braj Pal, under Section 25 Arms Act, which was numbered as S.T. No. 167 of 2005. Subsequently the case against accused Sarvesh and Rajesh was also committed to the court of session on 25.5.2006 and registered as S.T. No. 167 of 2006.;