Poonam Srivastav, J. - (1.) THREE different appeals have been filed against the judgment and order dated 16.1.2002, passed in Session Trial No. 723 of 1996. All the three appeals, we proceed to decide together by a common judgment. The three appellants have been convicted under Section 302/34, I.P.C. and sentenced to undergo life imprisonment. Appellants Raju and Raja have been awarded 10 years R.I. under Section 307 read with Section 34, I.P.C. with fine of Rs. 2,000. Appellant Aas Mohammad has been convicted under Section 307, I.P.C. and sentenced to undergo 10 years R.I. with fine of Rs. 2,000.
(2.) ACCORDING to the prosecution story, occurrence is alleged to have taken place on 13.6.1995 at 9.30 a.m. while the deceased Shabu alongwith injured Riyazuddin were taking their buffaloes for grazing in the jungle. When they reached in front of the house of Yusuf Gaddi, in Mohalla Ghasiyawada, they were attacked by the accused. The first informant, Imamuddin and Hafiz son of Wazir were following the victim and they had witnessed the occurrence. As soon as the deceased and Riyazuddin were near the turn in front of the house of Yusuf Gaddi, the accused armed with firearms arrived at the scene, accused Raja exhorted his two companions that this is an opportunity we were looking for to eliminate the two brothers, Raju son of Raja and Aas Mohammad son of Chunnu swished out katta from their pocket and fired at both brothers with an intention to kill them, Shabu received injuries on his chest and died instantaneously. Riyazuddin received injuries on his right forearm. The first information report was lodged by Imamuddin, P.W. I on the same day, i.e., 13.6.1995 at 10.15 a.m. at Police Station Sikandarabad, situated at the distance of three furlong east. The prosecution claims that a number of close residents gathered at the scene of occurrence hearing the shots and saw the accused running away. The first information report was registered at Case Crime No. 271 of 1995 under Sections 302, 307 and 506, I.P.C. against all the three accused. Chik report is Exhibit Ka-12, which is entered in G.D. report No. 23 at 10.15 a.m. Copy of the said G.D. is Exhibit Ka-13. Investigation was taken over by S.I. M.P. Singh, P.W. 4, who prepared inquest Exhibit Ka-3 and thereafter sent dead body with constable Mohar Singh for post mortem. Majrubi chitthi was prepared for getting injuries of Riyazuddin examined. He was examined in the District Hospital, Sikandarabad. Injury report is Exhibit Ka-14. Post mortem on the body of deceased Shabu alias Sahabuddin, was conducted on 13.6.1995 by Dr. P. K. Chaturvedi, P.W. 3. Following ante-mortem injury has been recorded in the post mortem : "1. Gunshot wound 1 cm. x 1 cm. x chest cavity deep on right side of front of chest 2 cm. below right nipple at 4 O'clock position margins inverted and lacerated. No blackening and no charring (external wound) detected medially backwards towards left scapula." Dr. Sunil Kaboj, P.W. 6 who examined injuries of Riyazuddin are also detailed hereinbelow : "1. L/W-04 (four cm.) x 1.5 cm. over Rt. hand palmer aspect to dorsal aspect medial edge 2 cm. above the Rt. thumb. 2. Black and brownish marks all around the wound and smell of gun powder and blood mixed. I Injury U.O. and advised X-ray Rt. hand."
(3.) THE prosecution examined only two witnesses of fact P.W. 1 Imamuddin, who is first informant and brother of the deceased. P.W. 2 Riyazuddin, who is also brother of the deceased and is alleged to have received injuries in the incident. P.W. 3 Dr. P. K. Chaturvedi, conducted autopsy on the body of the deceased. P.W. 4, S.I. M.P. Singh, is Investigating Officer, P.W. 5 Yash Pal Singh proved the first information report, chik report and its G.D. entry. P.W. 6 Dr. Sunil Kaboj examined injuries of the injured. No other witness was examined in support of the prosecution case. Defence has not examined any witness and has claimed to have falsely implicated on account of enmity. Charge-sheet was submitted by the Investigating Officer after completing the investigation, under Sections 302, 307 and 120B, I.P.C. Charge was framed against all the accused on 17.10.1997.;