Poonam Srivastav, J. - (1.) THE appellant Kali Prasad Singh alias Paintol in Criminal Appeal No. 476 of 2002 and Santosh Kumar Singh in connected Appeal No. 514 of 2002 have preferred these appeals challenging the judgment and order dated 29.1.2002 in S.T. No. 456 of 2000 convicting both the appellants under Section 302, I.P.C. and awarding to undergo life imprisonment alongwith fine of Rs. 5,000 each. In default of payment of fine to further undergo six months R.I. Both the appeals arise out of same incident and common judgment, thus they are being heard together.
(2.) THE occurrence is alleged to have taken place on 18.2.2000 at 10 p.m. in Mohalla Sakraul, Varanasi. THE F.I.R. (Exb. Ka-1) was lodged at 11.05 p.m. by Rajendra Singh (P.W. 1) son of Lalita Singh at Police Station Cantt., Varanasi at Case Crime No. 66 of 2000 (Exb. Ka-5) under Sections 302, 120B, I.P.C. and Crime No. 122 of 2000 (Exb. Ka-7) on 22.3.2000 at 13.50 under Section 25, Arms Act. THE place of recovery is shown to be mohalla Sakraul (near Purana Baruna Pul). THE first informant is Ashok Kumar Pandey against Kali Prasad alias Paitol Kumar, son of Ram Sagar Singh. THEre were three named accused. Two accused are the present appellants and one Ram Narayan Singh, resident of Baijnath, Police Station Ramgarh, district Bhabhua, Bihar. All the appellants were acquitted under Section 25, Arms Act. THE allegation against Ram Narayan Singh was conspiracy but he was granted benefit of doubt and acquitted. The prosecution story in brief as unfolded in the F.I.R. is that the first informant Rajendra Singh is resident of village Baijnath, Police Station Ramgarh, district Bhabhua (Bihar). He was preparing for civil services at Allahabad and his brothers Surendra Singh and Abhinav Rathore were residing with their mother in house No. 524/6A-3G, Indira Nagar Colony, Taktakpur, Police Station Cantt. Varanasi. A week prior to the incident the first informant had come to Varanasi from Allahabad. His younger brother Surendra who is the deceased in the instant case, was working with Topkan Opticals Rath Yatra. On 18.2.2000 at about 9 p.m., when his brother (deceased) did not return from his work, Rajendra Singh went to look for him towards Mahavir Mandir temple and they were walking towards their house. The deceased was walking 5-6 paces behind the complainant alongwith his bicycle. At about 10 p.m. near the house of Pramod Dubey, the accused armed with country made pistol, came from the side lane caught hold of his brother and Kali Prasad Singh alias Paintol and Santosh Kumar Singh caught hold of his brother and fired at his neck and temple (Kanpati). Hearing the shrieks of the complainant, constable Nepal Singh who also resides in the same mohalla, challenged the accused who ran away towards North. Surendra Singh died instantaneously. A number of close by residents arrived at the scene. The complainant was able to recognize the accused in the light of electric bulb. Ram Narayan was alleged to be the master mind behind the occurrence who had conspired with the accused to eliminate the deceased. Post mortem on the body of the deceased was conducted on 19.2.2000 at 2 p.m. by Dr. J. P. Tripathi. Following ante-mortem injuries were found on the body of the deceased : Ante Mortem Injuries : (1) Firearm entrance wound 0.5 cm. diameter x 0.5 cm. x brain deep on left side head 8 cm. above left ear and 10 cm. above to left eyebrow. (2) Firearm exit wound 3 cm. x 2 cm. right side head 2 cm. above and front to right ear 1 cm. behind outer end of right eyebrow. This injury is communicated with Injury No. (I). (3) Firearm entrance wound 1 cm. x 1 cm. x brain deep on the right side of head 1 cm. below and behind right ear and one bullet recovered from brain cavity which is sealed and sent to S.S.P., Varanasi. On internal examination, all bones of skull were fractured. Membranes were lacerated and perforated and brain was lacerated. According to doctor, cause of death was coma as a result of firearm injury caused to the head and brain.
(3.) PROSECUTION examined as many as 8 witnesses. Rajendra Singh, first informant is alleged to be the only eye-witness and was examined as P.W. 1. Sanjay Kumar Rai was examined as P.W. 2, Constable Nepal Singh as P.W. 3, Constable Uma Shanker Singh as P.W. 4, S.I. Sri R. P. Rai who performed the inquest report was examined as P.W. 5. Inspector Sri M. S. Chaudhary was examined as P.W. 6. S.I. Sri Ashok Kumar Pandey who investigated the case under Section 25, Arms Act was examined as P.W. 7 and Sri J. P. Tripathi was examined as P.W. 8. Recovery of one country made pistol of 12 bore and 12 bore cartridge was made on 22.3.2000 by a police party led by Sri Ashok Kumar Pandey alongwith S.I. Sri Vinod Dubey, Constable 1855 Raja Ram Ranjan and Constable No. 69 Sanjay Kumar Ojha while they were engaged in maintaining law and order in the Civil Court, Varanasi. They received an information that one of the accused involved in the murder of Surendra Singh committed in Taktakpur on 18.2.2000 is present in the Court campus. He was caught near Baruna Pul. When he was arrested at 12.10 p.m. the unlicensed arm and cartridge was recovered. It is alleged that he confessed the murder of Surendra Singh. The recovery memo clearly states that none of the public witness were ready to depose. However, the accused Kalika Singh was taken into custody. Recovery memos of money, watch and bicycle were prepared from the possession of the deceased which is marked as Exb. Ka-2. Pellets and cartridges were recovered from the place of occurrence which is Exb. Ka-3. Blood stained and plain earth is Exb. Ka-4. Recovery memo of country made pistol and cartridges alongwith accused is Exb. Ka-18A. Charges were framed against the present appellants under Section 302, I.P.C. on 3.10.2000.;