- (1.) These criminal appeals have been directed against the judgment of conviction dated 27.5.2002 and sentence dated 28.5.2002 passed by the learned Sessions Judge, Garhwa in connection with Sessions Trial No. 159 of 2001(G)/354 of 2000(P), whereby the appellants have been held guilty for offence punishable under Sections 302/34 I.P.C. and sentenced to undergo R.I. for life. The appellant Pappu Tiwari has also been held guilty for offence punishable under Section 27 of the Arms Act and sentenced to undergo R.I. for 3 years. The sentences so passed were directed to be run concurrently. The Facts:
(2.) The fact emerges from the Fardbeyan of Pankaj Kumar Singh recorded on 7.3.2000 at 14 hours at Sadar Hospital, Garhwa is that Vikas Kumar Singh (deceased) elder brother of the informant was going to Gym from his house at about 1 P.M. When he reached near the house of Ramadhar Ram, all the appellants who are named in the F.I.R. restrained him and Pappu Tiwari opened fire from his pistol, as a result Vikas Kumar Singh sustained injury and fell down. Thereafter the remaining appellants pounced over Vikas Kumar Singh and indiscriminatory inflected blows by means of dagger. On hulla when the informant and villagers assembled, the miscreants after hurling threats fled away. The informant could further learn that the appellants had used Maruti Van No. DL 2C 5177 belonging to Pintu Tiwari to make their escape good. Vikas Kumar Singh was removed to Sadar Hospital, Garhwa where he was declared dead. The reason behind the incident has been assigned that two days ago, Pappu Tiwari, Sanjay Ram and Luv Tiwari had demanded motorcycle from the deceased to go to Meral but the deceased did not oblige them and therefore an altercation between them had taken place and the accused persons had threatened to kill him within a week. On the basis of Fardbeyan, Garhwa P.S. Case No. 33 of 2000 under Sections 302/34 I.P.C. and Section 27 of the Arms Act against all the six appellants was registered and after investigation they were charge-sheeted. The case was committed to the Court of Sessions and the appellants were put on trial.
(3.) The prosecution has examined altogether 22 witnesses and proved documents and produced material exhibit to substantiate the charges, whereas appellants have also examined two defence witnesses. Alimuddin Khan and Akshay Kumar Mehta have been examined as C.W. 1 and C.W. 2, respectively. Dr. Mahesh Prasad, P.W. 1 had conducted postmortem examination on the dead body of Vikas Kumar Singh on 7.3.2000 at Sadar Hospital, Garhwa and described the injures noticed by him and proved the postmortem report Ext. 1. Ramadhar Ram P.W. 2, Jitendra Kumar Sinha P.W. 3, Binda Devi P.W. 4 (wife of Ramadhar Ram), Pinki Kumari P.W. 14 (daughter of Ramadhar Ram), Ajit Kumar Ram P.W. 16 and Girija Prasad P.W. 17 are the hearsay witnesses, out of whom Ramadhar Ram is also a witness to the seizure of blood stained soil. Arbind Kumar Singh P.W. 5, Pankaj Kumar Singh P.W. 6 (informant), Pravin Kumar Singh, P.W. 19 are the brothers of the deceased and Md. Zaffar Khan P.W. 21 is the formal witnesses. Subodh Kumar Singh P.W. 13 and Chandraman Singh, P.W. 18 are the independent eye witnesses. Naresh Ram P.W. 7, Shambhu Ram P.W. 8 had witnessed the recovery of a knife. Haider Ali Khan P.W. 9 who is a formal witness has proved the seizure list Ext. 3. Manoj Ram P.W. 10, is a witness in whose presence knife, on the basis of confession made by appellant Sanjay Ram, was recovered from a drain and accordingly seizure list was prepared which was also signed by him. This witness had also proved said knife in court and it was marked material Ext. 1. Lakshman Jha P.W. 11, is a Police Officer and he has seized Maruti Car bearing registration No. DL2C 5177 from the Garage of Md. Muslim and said Maruti Car was allegedly used by the appellants after the incident. Parsuram Singh P.W. 12 is a witness to the inquest and he had reached to he Hospital after knowing about the incident. Shiv Ram P.W. 15 is a Chowkidar who along with a constable took the dead body for postmortem examination. Baldeo Pandey P.W. 22 is the Investigating Officer. Rajendra Yadav D.W. 1 has proved receipt issued by Xray Clinic indicating that Xray of the right knee joint of appellant Upendra Tiwari was done on 24.1.2000. Samsuddin Ansari D.W. 2 has supported the fact that Upendra Tiwari @ Luv Tiwari had sustained injuries on his knee on 24.1.2000 and he was removed to Hospital on a rickshaw. Alimuddin Khan C.W. 1 has proved the prescription issued by Dr. M.P. Singh. Akshay C.W. 2 had also supported that he had seen plaster on the leg of Luv Kumar Tiwari on 9.3.2000. Aforesaid defence and court witnesses have been examined to show that Luv Tiwari @ Upendra Tiwari had sustained injury on his knee in an accident took place on 24.1.2000 and the knee was under plaster even at the time and date of occurrence.;