MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 14. 5. 1997 passed by the Additional Sessions Judge, Banswara convicting the first appellant Heerji u/s. 307 IPC and sentenced to imprisonment for life. He has also been convicted for offence u/s. 447 and 3/25 of the Arms Act. Second appellant Prabhu has been convicted for offence u/s. 307/34 IPC and sentenced to ten years rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment to further undergo 15 days simple imprisonment. He has also been convicted for offence u/s. 3/25 of the Arms Act. Both the sentences have been ordered to run concurrently.
(2.) IT was reported that the first appellant Heerji has died during the pendency of this appeal. The SHO, Police Station, Danpur by report dated 14. 6. 2000 has verified the said fact. In view, of this, the appeal filed by the first appellant Heerji stands abated. Since second appellant Prabhu has been convicted u/s. 307/34 IPC, we do not consider it appropriate to keep this appeal pending. In view of this, on the request of the learned counsel for the parties, the appeal is taken up for final hearing. The prosecution case as disclosed during the trial is as follows:- The accused Heerji and Prabhu are the cousin brothers of injured P. W. 2 Roopa. On 28. 6. 93 P. W. 1 Rama submitted a First Information Report at Police Station, Danpur stating inter alia that at about 11 a. m. he alongwith his son Roopa and his wife Mst. Moti were taking food under a tree. At that time accused Heerji and Prabhu armed with guns arrived. Heerji questioned as to how they were digging his field. He aimed the gun at Roopa and fired. The fire hit on the shoulders of Roopa. On this information, police registered a case for offence u/s. 307, 447/34 IPC and proceeded with investigation. After usual investigation, police filed the charge-sheet against both the accused for the aforesaid offence. Both the appellants denied the charges levelled against them. The prosecution in support of the case examined 15 witnesses. The accused-persons in their statement u/s. 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against them. Analysing the evidence, the learned trial Judge convicted and sentenced the appellant as noticed above. We have heard Mr. B. N. Kalla, learned counsel for the appellants and the learned Public Prosecutor and scanned the prosecution case. P. W. 8 Dr. Lalchand had stated that he examined injured Roopa and prepared the Injury Report Ex. P/11. The injuries were also radiologically examined vide Ex. P/12.
(3.) IT is significant to notice that the informant P. W. 1 Rama and the injured P. W. 2 Roopa have not supported the prosecution case and they have been declared hostile. However, the prosecution case has been supported by P. W. 3 Moti and P. W. 4 Sandu. The case against the appellant Prabhu is for offence u/s. 307/34 IPC. Even P. W. 3 Moti and P. W. 4 Sandu have only stated that Prabhu was also alongwith Heerji armed with a 12 bore gun. There is not a word how he facilitated the crime and shared the common intention with Heerji. In absence of such an evidence, his conviction u/s. 307/34 IPC is not sustainable. In view of the aforesaid, this appeal is allowed. The appeal filed by Heerji is dismissed having been abated. The appeal of second appellant Prabhu is allowed. His conviction u/s. 307/34 is set aside. Prabhu is on bail. His bail bonds stands discharged. . ;