SHERU Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) All these three appeals, are directed against the judgment and order dated 21.07.2001, passed by Sessions Judge, Hardwar, in Session Trial No. 361 of 1998, where by said court has convicted accused/appellants Sheru, Rayees @ Pappa and Gopal Shankar Gaur under section 302 read with section 34 of Indian Penal Code, 1860 (for short I.P.C), and each one of them has been sentenced to imprisonment for life. By the same judgment accused/respondents Suleman, Mahendra and Manoj @ Bittu have been acquitted from the charge of offence punishable under section 302 read with section 120 B I.P.C.

(2.) Heard learned counsel for the parties and perused the lower court record.

(3.) Prosecution story, in brief, is that on 03.05.1998, at about 7.30 a.m, Anupam Kumar (deceased) was sitting on the counter of his shop, in Jhabreda when three persons came on a motorcycle, and two of them got down and fired shots from the country made pistols at Anupam Kumar, who died on the spot. The third one kept the motorcycle start, and after the incident all the three ran away in the same motorcycle. First Information Report (Ex-A2) was given by PW4 Susheel Kumar Sharma within half an hour of the incident at about 8.00 a.m at Police Station Jhabreda , where on the basis of said report Crime No. 46 of 1998 was registered relating to offence punishable under section 302 I.P.C against the three unknown persons. Investigation was taken up by PW9 Sub Inspector Rajveer Singh. The Police immediately went at the spot took dead body of deceased in its possession, and prepared inquest report (Ex-A6) at 9. a.m. Also, police form No. 13 (Ex A-17), sketch of the dead body (Ex- A18), letter of the Chief Medical Officer (Ex-A19), and sample seal (Ex A 20) were prepared and dead body was sent for post mortem examination in sealed condition. PW3 Dr. K.C. Pant, conducted post mortem examination the dead body of Anupam Kumar at about 3.00 p.m and recorded six ante mortem injuries, and prepared autopsy report (Ex A1). He opined that deceased had died due to shock and hemorrhage, as a result of ante mortem injuries. On interrogation of eye witnesses names of the three miscreants came to the light, and it was disclosed by the eye witnesses that accused/appellant Gopal Shankar Gaur was driving the motorcycle of the make Yezdi bearing Registration No. UGY 262, and accused/appellants Sheru, and Rayees @ Pappa were the persons who got down from the said motorcycle, and fired shots from the country made pistols at Anupam Kumar. Recovery of the two weapons used in the crime was made on pointing out of the two accused namely Sheru and Rayees @ Pappa on 23.05.1998, and recovery memo (Ex A14) prepared by the police in the presence of the accused, and got signed by them. Before that metallic pieces were already recovered from the place of incident by the Investigating Officer on 03.05.1998. The fire arms recovered and the metallic pieces were sent for examination to the Forensic Laboratory. Meanwhile relating to possession of unlicensed fire arm and two live Cartridges two separate Crime Nos. 54 of 1998( against the accused Rayees @ Pappa) and 53 of 1998 (against Sheru) were registered in respect of offence punishable under section 25 Arms Act, 1959, which were investigated by PW14 Station Officer Suneel Kumar Singh. After interrogating the witnesses and on completion of investigation, charge sheet (Ex A-26 )was filed against six accused namely Gopal Shankar Gaur, Suleman, Mahendra, Manoj, Sheru and Rayees @ Pappa for their trial in respect of offences punishable under section 302/120B I.P.C., with the findings that accused/appellants Suleman, Mahendra and Manoj @ Bittu (acquitted by the trial court) had conspired in the commission of crime with the other accused (convicted by the trial court). Charge sheet (Ex A 24) and charge sheet (Ex A 25) were filed against accused Rayees @ Pappa and accused Sheru for their trial in respect of offence punishable under section 25 Arms Act, 1959.