HONOURABLE Dr. GOMBER, J. - (1.) THIS appeal has been preferred by the appellants (hereinabove) namely Akram, Aslam and Ashraf, sons of Khairati against the impugned judgment and order dated 28.2.2008 passed by learned Additional District and Sessions Judge (Fast Track) Hindaun City, District Karauli in Sessions Case No. 79/2002 (112/2001) whereby accused appellant Akram was convicted for offence under Sections 302, 324/34, 323/34 IPC and also 3/25 Arms Act whereas Aslam for 302 with the aid of 34 IPC, 324 and 323 with the aid of 34 IPC and Ashraf for 302 with the aid of Sec. 34, 324/34 and 323/34 IPC. The learned Trial Judge awarded sentences to them as under: 1. Akram : Under Section 302 IPC : Life imprisonment and fine of Rs. 500/-, in default of payment thereof to further under six months' imprisonment. Under Section 324/34 IPC: One year's rigorous imprisonment and fine of Rs. 200/-, in default of payment thereof to further under two months' imprisonment; Under Section 323/34 IPC: Three month's rigorous imprisonment. Under Section 3/25 Arms Act: One year's rigorous imprisonment and fine of Rs. 200/-, in default of payment thereof to further under two months' imprisonment.
(2.) ASLAM : Under Section 302/34 IPC: Life imprisonment and fine of Rs. 500/-, in default of payment thereof to further under six months' imprisonment. Under Section 324 IPC: One year's rigorous imprisonment and fine of Rs. 200/-, in default of payment thereof to further under two months' imprisonment. Under Section 323/34 IPC: Three month's rigorous imprisonment. Ashraf: Under Section 302/34 IPC : Life imprisonment and fine of Rs. 500/-, in default of payment thereof to further under six months' imprisonment. Under Section 324 IPC : One year's rigorous imprisonment and fine of Rs. 200/-, in default of payment thereof to further under two months' imprisonment. Under Section 323/34 IPC: Three month's rigorous imprisonment. 2. The version of the prosecution was unfolded on the statements (Parcha Bayan Ex.P/3) of PW-3 Hassu @ Hasmuddin an injured eye-witness and son of deceased Babu. His Parcha Bayan recorded on 16.7.2001 is to the effect that at about 6-6.30 a.m. when the complainant and his father were sleeping on the roof top (made of Patties known as 'Pattor'), all of sudden their next door neighbours namely Akram, Afzal, Aslam, Ashraf and Arif, laced with a katta, sword and Dharia came to their Pattor and his father Babu was shot on his chest by Akram by his country made pistol. On complainant's intervention so as to sve his father, Ashraf, besides inflicting an injury by sword on his father, did inflict one on his head also. Arif and Afzal also inflicted injuries on him as also on his father by sword. His father fell down but being scared of his life, he ran towards Mandi to call his brother Gola @ Shahzad (PW-4).3. On hearing hue and cry, PW-1 Islam and PW-2 Munna who were passers by, came and witnessed the whole incident and took Babu to the hospital but he succumbed to the injuries on the way. At the time of this occurrence, mother of the complainant and his sister Lallo were on the ground floor of the house. It was further mentioned in the Parcha Bayan that there was a dispute between them on account of a common wall and on the preceding evening, accused persons who are next door neighbours, had threatened them to their lives and that the mother of present appellants had also uttered the words 'we will see you'. On the basis of this Parcha Bayan, case No. 425/2001 was registered at P.S. Hindaun City for the offence under Sections 147, 148, 149, 302 and 120-B IPC and formal FIR was chalked. During the investigation, Investigating Officer recorded the statements of witnesses, prepared panchnama laash, collected blood stained and normal 'Bajri' & 'chuna', blood stained clothes recovered the country made pistol at the instance of accused Akram whereas two swords were recovered at the instance of Aslam and Ashraf and got the post-mortem of deceased conducted and obtained post-mortem report of deceased and medical reports of injured person Armoury Report with regard to pistol. After completion of investigation, a complete charge-sheet against the present three appellants, along with others, namely Arif and Afzal @ Ashiq was filed for offence under Sections 147, 148, 149, 323, 324, 302 IPC; against Mst. Raffko (mother of accused) was filed for offence under Section 120-B IPC whereas- as against Afzal @ Ashiq, charge-sheet was filed under Section 299 Cr.P.C. Arif (not before us) being juvenile, his case was sent for trial to the Juvenile Justice Board. Therefore, by way of impugned judgment, learned Trial Court decided the case against the present three appellants as also against Mst. Raffko who was acquitted of the charges leveled against her.
(3.) THE learned Sessions Judge, after hearing the charge arguments, read over the charges to the accused persons. Accused Akram was charged with offence under Sections 148, 323/149, 302, 324/149 IPC as also 3/25 Arms Act; Aslam for offence under Sections 148, 323/149, 302/149 and 324 IPC; whereas Ashraf with offence under Sections 323/149, 324/149, 302/149 and 148 IPC. Accused Raffko is not before us (since acquitted) and no appeal by the State Government, hence no discussion with regard to Mst. Raffko is required. In order to substantiate its case, the prosecution examined as many as 21 witnesses and exhibited 30 documents. After completion of prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded and all incriminating evidence and material was put to them. They alleged false implication. ;