MOHAMMAD RAFIQ,J. - (1.) This appeal is directed against judgment dated 16.12.2011 passed by Additional Sessions Judge, (F.T.) No. 2, Bharatpur (for short 'the trial court') whereby accused-appellant has been convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 10,000/-, in default whereof, he was to further undergo six months rigorous imprisonment.
(2.) Facts of the case are that a written report(Exhibit P-8) was submitted by Harish Chand(P.W.5) on 04.10.2008 to SHO, Police Station Kotwali, Bharatpur to the effect that his son Vinod @ Veenu had gone to the house of his cousin at 9.00 P.M. to participate in a jagran. One Dabbu informed the informant at 10.45 P.M. on mobile phone that Lala had hatched up a conspiracy with his friends and murdered Vinod by opening fire at him in front of his house at Station Road Bajaria. It was alleged that Manoj, Ballu and Maharaj Singh, who were tenants in his house, took Vinod with them in a pre-planed manner and eventually murdered him. The incident took place at 10.15 P.M. and was seen by neighbours of the area and the pedestrians. The informant took his brother to RBM Hospital where doctors declared Vinod as brought dead. On the basis of aforesaid written report, the police lodged FIR No. 410/2008 (Exhibit P-71) for offences under Sections 302, 120B and 34 IPC and investigation commenced. After completion of investigation, the police submitted charge sheet against the accused-appellant and other accused Gajendra Singh @ Gajju and Raj Kumar @ Sonu for aforesaid offences. The trial court framed charges against the accused-appellant for offence under Sections 120B, 302 IPC and Section 3/25 of Arms Act and against accused Gajendra Singh @ Gajju and Raj Kumar @ Sonu under Section 120B and 302 read with Section 114 IPC and Section 3/25 of Arms Act, which they denied and claimed to be tried. In support of its case, the prosecution examined as many as 32 witnesses and exhibited 71 documents. Thereafter, accused-appellant was examined under Section 313 Cr.P.C., 1973 who pleaded innocence and stated that he has been falsely implicated in the case due to enmity. In defence, no witness was produced on behalf of accused-appellant and five documents were got exhibited. The trial court, on conclusion of trial, vide judgment and order dated 16.12.2011 acquitted the other accused Gajendra Singh @ Gajju and Raj Kumar @ Sonu of the charges framed against them, however, convicted and sentenced the accused-appellant in the manner indicated herein above but at the same time, acquitted the accused-appellant of the charge under Section 120-B and Section 3/25 Arms Act. Hence, this appeal.
(3.) Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of accused-appellant argued that the prosecution has failed to prove the charge of conspiracy, therefore, the accused-appellant was acquitted of the charge under Section 120-B IPC and Section 3/25 Arms Act. As per the prosecution, the dispute occurred because the deceased had taken mobile handset of Sunil and a panchayat was convened on that dispute. The accused had gone to that panchayat with his friend but the prosecution failed to substantiate this by any evidence. The dispute occurred because of the mobile handset of Sunil. In fact, Sunil himself has not supported the case of the prosecution case and was declared hostile as he had denied having known the accused-appellants. According to case of the prosecution, Maharaj Singh, Manoj Sain and Ballu had invited Vinod to jagran. While Maharaj Singh, Manoj Sain and the deceased reached there on one scooty, they met Laxmikant and Ballu. Maharaj Singh(P.W.16) has denied having accompanied the deceased to the place of incident. All the eye witnesses of the prosecution were declared hostile and did not support the prosecution case. Only witness who has supported the case of the prosecution is Manoj Saini(P.W.20) but his statement does not inspire confidence inasmuch as his conduct was quite unnatural. He has also not stated that he invited the deceased to the place of jagran. In fact, this witness fled away after the incident and was hiding for 3-4 days. Thereafter, his police statement was recorded. This witness because of his conduct has turned himself as unreliable witness.;