PANKAJ NAQVI,J. - (1.) These two criminal appeals assail the judgment / order dated 6.10.2009 by Addl. Sessions Judge, Agra in S.T. No.419 of 2006, (Case Crime no. 105 of 2006, P.S. Tajganj, Agra), convicting / sentencing the appellant- Pankaj Sharma @ Bobby under Section 302 / 148 IPC to life and other appellants under Section 302 /148 / 149 IPC with life and fine of Rs. 20,000/- each, a default sentence of 2 years each and under Section 148 IPC to 6 months sentence each. 1. The case of the prosecution in a nutshell is as under:- (A) There was a marriage of the brother-in-law (Amit Sharma) younger brother of the informant on 5.3.2006. The wife of victim / Lalit Parashar, i.e, Soniya @ Shashi was at her maternal house to attend the marriage. The in-laws of the victim had borrowed Rs.2 lacs from him. On 22.3.2006, victim along with his nephew / Amit / PW-2 visited the house of in-laws at around 7:00 in the morning for "Bidai" of his wife as also to demand borrowed amount. The in-laws refused to comply both the demands, a quarrel ensued and before victim could understand any thing, the in-laws caught hold of him, accused Pankaj @ Bobby snatched pistol from the waist of the victim and fired a shot at him. PW-2 rushed the victim in a car to Upadhyay Hospital. He simultaneously informed PW-1/ informant elder brother of the victim, telephonically about the occurrence. PW-1 came to the hospital to be informed by PW-2 that as a part of conspiracy, accused Jagdish (father-in-law of deceased), Anil, Amit, Rahul (brother-in-laws), Moolchand (father-in-law), Anil, Ajay (maternal uncle of Sonia), Shiv Rani (mother-in-law of Lalit Parashar) caught hold of the victim, while accused Pankaj @ Bobby after snatching the pistol from the victim fired a shot at him. This murder was alleged to have been committed with a view to usurp the borrowed amount and the wife's adorned jewellery. The condition of the victim was reported to be critical. (B) On above allegations, a written report (Exbt. Ka-1) dated 22.3.2006 came to be scribed / lodged by PW-1 / Dhruv Parashar, as Case Crime no. 105 of 2006 under Section 307 IPC, P.S. Tajganj, Agra on 22.3.2006 at 8:30 A.M, against the abovenamed 8 accused persons. (C) During treatment victim died on 23.3.2006, at 7:00 A.M, case was converted to Section 302 IPC vide G.D. Entry no.15 (Exbt. Ka-5). (D) PW-8 / Sanjay Kumar Jaiswal, the first I.O, obtained the statement of the first informant (PW-1), PW-2 and prepared the site-plan (Exbt. Ka-8). He recovered a pistol with the marking "RP8121 / Indian Ordinance Factory", 2 magazines along with 15 live cartridges- 32 bore, one empty and a bullet of 32 bore, memo prepared (Exbt. Ka-9). He collected blood from the floor in a glass bottle, memo (Exbt. Ka-10). The incriminating materials were sent for forensic / ballistic examination, ballistic report (Exbt. Ka-20). He recorded the statements of memo witnesses Suresh Chandra and Santosh (both not examined). The field unit took the photographs of the finger prints on the weapon in presence of PW-8. He then proceeded on the same day, i.e, 22.3.2006 for Upadhyay Nursing Home, met Dr. Upadhyay, who stated that the injured was admitted in ICU in a precarious state, who was brought by one Amit Sharma. PW-8 arrested accused Jagdish Prasad Sharma, Pankaj Sharma, Rahul Sharma and Smt. Shivrani from the bus-stand, obtained their statements on the same day. (E) PW-9 took up investigation from 23.3.2006 after conversion of case to Section 302 IPC. He, on the same date, conducted the inquest (Exbt. Ka-2) at the Hospital, collected blood stained apparels of the deceased, memo (Exbt. Ka-12). He prepared police papers including the letter to CMO for autopsy. He attempted to record the statement of wife (Sonia @ Shashi) of the deceased on various occasions, but in vain. He on 22.4.2006 filed a charge-sheet against arrested accused Jagdish Sharma, Smt. Shivrani, Pankaj @ Bobby, Rahul Sharma and Moolchandra under Sections 147, 148, 307 and 302 IPC while continuing investigation against other absconding accused. On transfer of PW-9, investigation was again transferred to PW-8. He finally filed a charge-sheet against Anil Sharma, Amit Sharma and Vijay Sharma under Sections 147, 148, 307, 302 IPC. (F) The case of all the 8 accused was committed to the Sessions, charges under Sections 302 / 148 IPC framed against accused Pankaj @ Bobby and that of Sections 302 / 149 / 148 IPC against 7 other accused. (G) The prosecution examined as many as 10 witnesses. PW-1 / the informant and real brother of the deceased, PW-2 nephew of the deceased, a sole eye-witness, PW-3 witnessed the running of the accused from the scene. PW-4 the Head Constable Collector Singh of P.S. Tajganj, proved the FIR (Exbt. Ka-3) as also the G.D. entry no. 15 at 8:15 A.M in his handwriting (Exbt. Ka-4). PW-5, the doctor, is alleged to have examined the victim at the time of his admission in Upadhyay Nursing Home and is also the author of the injury report (Exbt. Ka-6). PW-6/ Dr. Surendra Singh, a family friend of PW-1, a hearsay to the occurrence. PW-7/ the doctor, conducted the autopsy (Exbt. Ka-7) of the deceased on 23.3.2006 at 12:15 P.M. PW's-8 and 9 are the I.O.'s. PW-10, the Compounder of Upadhyay Nursing Home, who allegedly proved the registration form of the victim, filled up at the time of his admission. The trial court examined CW-1, Constable 1794 of P.S. Tajganj, Agra, who allegedly proved the G.D. entry (Exbt. C-1) that the victim was admitted by accused Anil Sharma in Upadhyay Nursing Home. (H) The defence alleged that as the first marriage of the deceased came to be dissolved after series of litigation, second too on the verge of collapse, victim used to torture his wife Sonia @ Shashi, as frustration had set in as she had denied to cohabit with the victim as a result of which he shot himself from his own pistol which he used to carry. No defence evidence was led.
(2.) The trial court after analysing the evidence was of the view that it was a case of cold blooded murder, plea of suicide is devoid of merit, while acquitting accused Smt. Shivrani and Vijay Sharma as they were not close relatives of the other co-accused and had no occasion to be present at the time of occurrence, while Vijay Sharma was nursing a fracture, convicted the appellants as above.
(3.) We have heard Sri B.P. Singh Dhakray, Sri Jitendra Kumar Shishodia and Sri Aklank Kumar Jain, learned counsel for the appellants, Sri Satish Trivedi, learned Senior Advocate assisted by Shri Shree Prakash Giri, S/Sri Sujan Singh, R.P. Dwivedi and Sheshadri Trivedi for the informant and Sri A.N. Mulla, the learned A.G.A, for the State.;