G.R. Moolchandani, J. - (1.) Appellants-accused Mukhtiyar and Junned have challenged the validity of judgment dated 09/08/2011 passed by Additional District and Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No. 189/2009 by which both the accused-appellants have been convicted under Sections 302 and 302/34 of IPC and have been sentenced to undergo life imprisonment coupled with a fine of Rs. 2,000/- and further to undergo one month simple imprisonment in event of non-payment of the fine imposed.
(2.) According to the F.I.R Ex.P.1 lodged by PW.1 Heeralal, brother of the deceased, it has been said that: ...[VERNACULAR TEXT OMITTED]...
(3.) Heard the submissions of both the sides, learned counsel for the accused-appellants has contended that the prosecution has miserably failed to establish its case and so called important witnesses of the prosecution have become hostile and they have not supported the story of the prosecution, sole eye witness Jahid has also not supported the story of the prosecution and has not averred the names of the alleged accused persons and as per investigating Officer's evidence, the complainant brother of the deceased was not present at the site of the occurrence nor he reached there after the crime and entire story, which has been narrated by the complainant is fabricated. It has further been argued that the calibre of the alleged weapon has also not been disclosed by the prosecution nor its recovery has been established because PW.17 a witness of the recovery has said that the alleged weapon was kept in the pocket by the policemen and was not sealed during the alleged recovery and another witness of the recovery PW.8 has become hostile, so the recovery of the alleged weapon, allegedly used in the crime has become dubious so, FSL report procured on the basis of the same, becomes futile and not worthy to be read in evidence. It has also been argued that PW.1 Jahid has become hostile and he has specifically observed that the assailants were of black complexion and appearing similar to the habitants of Bihar and U.P. and they fled away on motorcycle, whereas complainant PW.1 Heeralal, brother of the deceased, has said that the assailants were, seen coming over hastily on LML Scooter, which too makes the story of the prosecution false, despite the trial Court has shown apathy to the true version of the prosecution story and evidence adduced and thus has erred in law in passing the impugned judgment, whereas on the basis of the available evidence the appellants are liable to be acquitted and has submitted to allow the appeal and acquit the accused-appellants. On the contrary, learned public prosecutor has said that there is no error in the findings of learned trial Court because recovery of weapon and cartridge has been made from the accused persons, which has been further confirmed and established by Forensic Laboratory Report that the weapon was found with the residuals of the fire and rimless cover of the bullet has also been opined to have been fired from the same weapon, there was enmity between the appellants and deceased and they were seen coming over hastily near and from the direction of the occurrence by the complainant-brother of the deceased and on approaching there, complainant found his brother injured with bullet injury, who subsequently succumbed to his injuries in the hospital and an effective and precise version has been narrated by the complainant, which is corroborated by the recovery and FSL report. In these circumstances, the contentions as raised by the defence counsel, do not have got any force, prosecution has given positive evidence and has succeeded in establishing its case against the appellants-accused and there is no infirmity or flaw in the judgment impugned, so the appeal be dismissed.;