SHARMA, J. - (1.) RAJENDRA Sahu, an auto-rikshaw driver, did not know what the `unborn next moment' held for him. While he was sitting on his auto-riksha at autostand, his assassin came in a Maruti car, called him near the car and opened fire at him. Injured RAJENDRA Sahu was removed to the Hospital where he breathed last. Sudhir Kumar Jain, appellant herein, along with co-accused Sahilendra Gautam, was indicted for having committed murder of RAJENDRA Sahu before the learned Additional Sessions Judge (Fast Track) No. 1 Kota, who vide judgment dated November 25, 2003, while acquitting co-accused, convicted and sentenced the appellant as under:- Under Section 302 IPC : To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. Under Section 3/25 Arms Act : To suffer rigorous imprisonment for two years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.
(2.) THE prosecution case is woven like this:- Raghunath Suman (Pw. 22) ASI Police Station Dadabari Kota on April 17, 2003 recorded Parcha Bayan (Ex. P-22) of injured Rajendra Sahu (since deceased) at MBS Hospital Kota wherein he stated that at around 9. 45 AM on the said day he came to the auto-stand near Baheti Hospital in his autoriksha bearing No. RJ-20p/5505. Around 12 Noon while he was sitting on his auto-riksha he saw one Maruti 800 bearing No. RJ-06c-3432 coming from the side of Talwandi and got halted in front of auto-stand. Three persons were sitting inside the car. Out of them one person half opened the glass of left front side gate of the car and signaled him to come nearer to the car. He then got down of auto-riksha and went near the car. In the meanwhile the person, who was sitting on the left front side of the car armed with Desi Katta (country made pistol), opened fire at him as a result of which he received injuries just above his navel and blood started oozing out. THE persons sitting in Maruti car drove the car towards aerodrome. Iqbal then took him to the hospital in auto-riksha. On that parcha bayan a case under Section 307/34 IPC was registered and investigation commenced. Statements of witnesses under Section 161 Cr. P. C. were recorded. During the course of investigation Rajendra Sahu succumbed to his injuries and Section 302 IPC was added. Necessary memos were drawn, the accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Kota. Charges under Sections 302, 302/34 IPC and 3/25 Arms Act were framed. THE accused denied the charges and claimed trial. THE prosecution in support of its case examined as many as 31 witnesses and got exhibited the documents. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard learned counsel for the appellants and learned public prosecutor and with their assistance scrutinised the material on record. Rajendra Sahu vide Postmortem Report (Ex. P9) received following ante mortem injuries:- 1. Multiple punctured wound (wounds of entering of fire arms) of size 3/4 x 1/2 cm in the area 18cm x 8cm on the lower part of Rt. side of chest over the upper part of abdomen Rt. side with blackening 2. Stitched wound 20cm longer on the left preandi region abdomen. 3. Stitched wound 9cm longer Rt. flate of abdomen. In the opinion of Dr. R. K. Sharma (Pw. 26) the cause of death was shock as a result of firearm injuries to intestine at liver sufficient to cause death in the ordinary course of nature. Shimbhu Dayal (Pw. 2), Iqbal (Pw. 4), Dilip Kumar (Pw. 9) and Farookh Mohammad (Pw. 17) did not support the prosecution case and they were declared hostile. According to them they did not see the incident and reached near the injured after the incident occurred. Suresh Kumar (Pw. 18) however deposed that on the date of incident he was posted as Constable in Police Station Chechat. On that day around 10 AM when he came out of police station for the purpose of delivering the `dak and Tameels' (post and summons/ notices duly served) at Kota, he met Sudhir Jain Contractor, who was going to Kota in white Maruti Car. Suresh Kumar got lift in the car and sat on the rear seat. At Bus-stand Chechat one Shailendra Gautam occupied the driver seat and Sudhir was made to sit on the left side near the driver seat. Around 12 Noon the car reached near Baheti Hospital Kota. Suresh Kumar then got down of the car and took few steps ahead. In the meanwhile Sudhir signaled one auto-riksha driver to come nearer the car. In the meanwhile gun was fired. Suresh Kumar could only see the car in which he came from Chechat to Kota. He could not see as to who sustained firearm injury. He then went to Juvenile Court and came back to Chechat in the evening.
(3.) RAGHUNATH Suman (Pw. 22) who was posted as ASI in the Police Station Dadabari, deposed that on receiving information about the incident, he reached to MBS hospital around 12. 40 PM and found Rajendra lying on Bed No. 9 in Emergency Ward. He was in a fit state of mind to give the statement. His Parcha Bayan (Ex. P-22) was recorded on which he put his signatures. Dr. Renu Raonka (Pw. 28) was posted as Vice Principal in the MBS Hospital on April 17, 2003. In her deposition she stated that on that day around 12. 30 PM she attended injured Rajendra. She produced Bed-head ticket (Ex. P-28) and operation notes (Ex. P-29) of Rajendra. IN her cross examination she stated that at 12. 30 PM when she examined the injured his blood pressure was 150/70 and pulse was ticking 104 times per minute. His condition was stable. He was fully conscious and talking. She deposed thus:- ******** (Patient was conscious, fully conscious and was talking ). Samiullah Investigating Officer (Pw. 29) arrested appellant Sudhir Jain on April 17, 2003 at 5. 50 PM vide arrest memo (Ex. P- 14 ). Sudhir Jain volunteered that he had concealed 12 bore Desikatta under a stone in Balakund Nala (drain ). This information was recorded by IO in the memo (Ex. P- 31) and pursuant to the information Desi-katta got recovered vide recovery memo (Ex. P-15 ). ;