PANKAJ NAQVI,J. - (1.) This criminal appeal has been preferred against the judgment / order dated 19.12.2003 passed by Addl. District & Sessions Judge, Fast Track Court No.4, Kanpur Nagar in S.T. No. 305/2002 (State Vs. Vibhash Kumar & others) under Section 302 IPC, convicting / sentencing the appellants under Section 302 IPC, to life with fine of Rs. 50,000/- each and a default sentence of 2 years each and under Section 25 of the Arms Act to 3 years each.
(2.) The case of the prosecution is as under: (i) Jagannath Prasad Pathak had 4 sons, Subodh Pathak (married to Madhuri), Santosh Pathak, Pramod Pathak and Vinod Pathak. Santosh Pathak had 2 sons Vibhash and Chanchal (Appellants 1 and 2). Subodh Pathak had 3 issues, out of whom Ashish Pathak (PW-2) was aged about 14 years and Priya Pathak (PW-3) around 6 years at the time of occurrence. PW-1/ the informant is the son-in-law of Subodh Pathak. (ii) The father-in-law of the informant, i.e, Subodh Pathak and his brother Pramod Pathak (unmarried / issueless) had partitioned the landed property amongst them, Pramod Pathak with the consent of Vinod Pathak transferred his share jointly in favour of Subodh Pathak and Santosh Pathak, Vibhash and Chanchal, started coercing the father- in-law / Subodh Pathak that he should transfer the share of Pramod Pathak in their favour to which neither Subodh Pathak nor Pramod Pathak were agreeable, which generated animosity. PW-1 visited the house of his father-in-law on (iii) 25.7.2001. Around 9:45 P.M, Vibhash and Chanchal and one Vinay Kumar Tiwari @ Monu Tiwari (brother-in-law of Vibhash), all armed with countrymade pistol entered the house of Subodh Pathak / father-in-law, hurling abuses and alleging as to how they could alienate the share of Pramod Pathak, that too without payments to accused persons. Subodh Pathak and Pramod Pathak attempted to flee fearing their lives but Vibhash, Chanchal and Vinay@ Monu fired indiscriminately at the doorstep, causing critical injuries to Subodh Pathak and Pramod Pathak. Madhuri ran to rescue the victims but all the 3 accused assaulted the lady with pistol butts, causing serious injuries. The occurrence was witnessed by PW-1, Madhuri, PW-2 and PW-3. PW-1 took all the 3 injured at night to Ursala Hospital, wherein Subodh and Pramod were declared brought dead and Madhuri was admitted for medical treatment. PW-1 on above allegations, scribed a report (Exbt-Ka1). On the basis of this report, lodged by PW-1, F.I.R (Exbt Ka2) came to be registered against the appellants on 25.7.2001 at 23:45 under Section 302/307 IPC.
(3.) After lodging the report, condition of Madhuri is alleged to have deteriorated. She was taken to Regency Hospital same night itself. She gave a statement to the police on 26.7.2001 in the presence of PW-1 and his wife (not examined), Madhuri succumbed to the injuries at the hospital on 28.7.2001. With her, death, Section 307 IPC was struck off.;