Naheed Ara Moonis, J. - (1.) The instant appeal is arising out of judgment and order dated 26.8.2010 passed by the Additional Sessions Judge, Fast Track Court No.1, Basti in S.T. No. 142 of 2004 (State vs. Rakesh Tiwari @ Bablu @ Akhilesh) arising out of case Crime No. 339 of 2000, under section 302 I.P.C., police station Parsarampur, district Basti whereby the appellant has been awarded life imprisonment and Rs. 10,000/- fine under Section 302 I.P.C. In default of payment of fine the accused/appellant has to go additional sentence of one year.
(2.) The prosecution case in a short conspectus is that a first information report was lodged by Sita Ram Pandey in respect of the incident occurred at 8 A.M. on 1.11.2000 alleging therein that he is a resident of village Dhuniyabhiti, police station Parasrampur, district Basti. On 1.11.2000 his brother who is an Advocate by profession had left his house for civil court along with Parma Nand Shukla at 8 A.M. when he reached in front of the house of Setu Bhuj at that juncture Mithlesh, Shailesh Tiwari and Rakesh @ Babbu all sons of Ramdeen resident of village Chhapiya, police station Paikaliya, district Basti came on a motorcycle and attacked upon him on account of old enmity of property dispute. All the three persons had whipped out country made pistol and revolver and made indiscriminate firing upon Deena Nath Pandey at this Parma Nanad Shukla had made hue and cry on account of which various persons came on the spot. The complainant Laxmi Narain and Setu Bhuj also reached at the spot. All the accused persons escaped towards Baijalpur on the motorcycle brandishing Katta and revolver. Deena Nath Pandey died on the spot. The complainant was also going to market from his house. He was accompanied with Bhav Nath Pandey son of Kashi Nath. All the persons had witnessed the incident and recognized the accused persons. The dead body of his brother was lying on the spot and had come to lodge the report to take action. A question was asked as the house of Setu Bhuj situate in which village it was answered by the complainant that it is in village Parsahwa. On this information the first information report was lodged at about 9.45 A.M. on the same day, which was registered as case crime No. 339 of 2000, under Section 302 I.P.C. at police station Parsarampur, district Basti against the accused persons, namely, Mithlesh, Shailesh and Rakesh @ Babbu, all sons of Ram Yagya.
(3.) The trial of accused Mithlesh and Shailesh was separated from the present accused/appellant Rakesh Tiwari @ Bablu @ Akhilesh who faced the trial in S.T. No. 148 of 2001 (State Vs. Mithlesh and others), S.T. No. 149 of 2001 (State Vs. Shailesh) arsing out of case Crime No. 339 of 2000, under Section 302/34 I.P.C. and S.T. No. 288 of 2001) arising out of case Crime No. 58 of 2001, under Section 3/25 Arms Act, police station Parsarampur, district Basti. They were convicted by the learned Additional Special Judge, E.C. Act, Basti by order dated 11.5.2004 under Section 302/34 I.P.C. for life imprisonment with fine of Rs. 2,000/- each and in default of payment of fine both the accused persons were directed to serve additional sentence of one month. The accused Sailesh was acquitted of the charge under Section 3/25 Arms Act. Both the accused persons, namely, Mithlesh and Shailesh had challenged their conviction by filing the Criminal Appeal No. 3347 of 2004 (Mithlesh and another Vs. State of U.P.).;