RAKESH TIWARI,J. - (1.) - Heard learned Counsel for the appellant and Sri K.N. Bajpai and Sri Sher Singh learned AGA and perused the record. This appeal has been preferred challenging the validity and correctness of the impugned judgment and order dated 22.10.2003 passed by Sri B.N. Mishra, II Additional Sessions Judge, Sonebhadra in Special Session Trial No. 19 of 2001 (State v. Jaswant Singh Garewal) convicting and sentencing the appellant under section 302 I.P.C. to undergo life imprisonment. The appeal has been filed on the grounds that the conviction of the appellant is against the weight of the evidence on record and findings of the learned Judge are perverse, illegal and contrary to the facts which have resulted into miscarriage of justice. It is also challenged on the ground that the conviction of the appellant is based on wholly insufficient evidence as such the sentence awarded to the appellant is bad in law.
(2.) ACCORDING to the prosecution case, the fast informant Naresh Kumar son of Sohan lal was resident of T.S. Colony of Quarter No. 44 of type-I, Vindhyanagar, P.S. Vindhyanagar, District-Sidhi, Madhya Pradesh. On 8.6.2001, he along with his elder brother Kiran Kumar alias Tota had gone to meet Jaswant Singh, appellant who was living at N.C.L. Khadiya in Quarter No. MQ-266 by his motorcycle No. U.A.U. 2619. It is averred that he had gone to meet Jaswant Singh with regard to a truck which was being run under the alleged partnership of the appellant and elder brother of the first informant. While they were talking at the residence of Jaswant Singh at about 2.30 p.m., the appellant became angry and abusing brother of the first informant he came out with a gun from his quarter and fired upon Kiran Kumar alias Tota with an intention to kill him. On seeing shot being fired, upon his brother, the first informant hid due to fear. It is also averred in the first information report lodged on 8.6.2001 at about 16.15 p.m. that his brother was lying dead at the spot of occurrence which has also been witnessed by other persons also. According to the First Information Report Ex. Ka-1, it appears that occurrence had taken place on 8.6.2001 at about 2.30 p.m. and the FIR was lodged by the first informant Naresh Kumar younger brother of the deceased Kiran Kumar alias Tota at about 4.15 p.m. After the report was lodged, investigation was taken up by Jagdhari Chaudhary, SHO Shaktinagar on the same day. He prepared the inquest report and sent the body of Kiran Kumar alias Tota duly sealed for the post-mortem in the custody of Constable Arun Kumar Singh and Constable Ajeet Kumar Singh. He, thereafter, recorded the statement under section 161 Cr.P.C. of the witnesses and also added section 3(2}(5) of SC/ST Act on an application of Sohan lal father of the deceased which was investigated by Jag-deep Singh the then Circle Officer, Pipri. Jagdhari Singh also collected sample of blood stained and plain soil from the spot of occurrence on the same day and after taking possession of the motor cycle the same was handed over in the supurdagi of the first informant Naresh Kumar. During investigation, on an information received, the accused-appellant Jaswant Singh is said to have been arrested from Shaktinagar Bus Stand and on his pointing out in the presence of witnesses Durgapati Jha and Sudar-shan Pandey, SBBL gun which was used in the incident along with 12 bore cartridges and empty cartridges were recovered from the quarter of the appellant-accused.
(3.) THE second investigator Jagdeep Singh also recorded the statement of the first informant Naresh Kumar, his father Sohan lal and forwarded charge-sheet under section 302 IPC read with section 3(2) 5 of SC/ST Act. The appellant denied from the charges levelled against him and claimed to be tried. The prosecution produced P.W.-l Naresh Kumar, P.W.-2 Sudarshan Pandey who were witnesses of recovery of S.B.B.L. gun from the quarter of the accused, and P.W. 3 Sub-Inspector Rarn Surat Pandey, P.W. 4 Jagdhari Chaudhary- In-charge Police Station, P.W. 5 Dr. Pramod Kumar, P.W-6 Sohan lal, P.W.7 H.C.P. Ram Sudhar and P.W.8 Zonal Officer. The statement of the accused was also taken under section 313 Cr. P. C. on 13.2.2003 who denied prosecution case and claimed that he had been falsely implicated. He also produced D.W. 1 Vinod Kumar in support of his case. ;