ASHWANI KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) Under challenge in the present appeals is the judgment and order dtd. 22/8/2007 passed by learned Additional District and Session Judge in Sessions Trial No.216 of 1999 arising out of case crime no. 50 of 1999 under Ss. 148, 302, 149, 404 IPC at Police Station Bangarmau District Unnao and Sessions Trial No. 217 of 1999 arising out of case crime no.51 of 1999 under Sec. 3 r/w 25 Arms Act at Police Station Bangarmau district Unnao whereby the appellants were convicted under Sec. 302 read with Sec. 34 Indian Penal Code, 1860 and were sentenced to imprisonment for life and fine of Rs.5000.00 only with default stipulation of additional imprisonment of six months. Appellant Ashwani Kumar was further convicted under Sec. 404 IPC and was sentenced to undergo rigorous imprisonment for a term of one year and fine of Rs.1000.00 with default stipulation of additional imprisonment of three months. Moreover, he was convicted under Sec. 3 r/w Sec. 25 of Arms Act and sentenced to undergo rigorous imprisonment for a term of two years and fine of Rs.1000.00 with default stipulation of additional imprisonment of three months.

(2.) The case of the prosecution, as unfolds from the FIR dtd. 17/2/1999 arising out of Case Crime No. 50/99 under Ss. 302, 307, 396 IPC, P.S. Bangarmau District Unnao, is that the informant Anand Mohan son of Ram Shanker Gaur gave an application in the Police Station Bangarmau on 17/2/1999 that his uncle Ram Naresh Gaur son of Sri Pal and uncle's son Anil Kumar son of Ram Naresh were killed by the appellants and Sanad Kumar son of Ram Swaroop, Avnish Kumar son of Ram Avatar and Parsu son of Pohkar Pasi. On 16/2/1999 appellant Ashwani Kumar and his brothers had intentionally taken their tractor full of potatoes through the fields of informant breaking its Khahee in consequence of which a verbal exchange had taken place between them. On 17/2/1999, while the informant, his father, his uncle Ram Naresh, uncle's son Anil Kumar and daughter Vasundhara Devi were digging potatoes in the field of Ram Naresh, the armed accused tried to repeat the act to which he objected. Ashwini Kumar fired a shot at Ram Naresh which he missed. Ram Naresh also made an air shot with his licensee gun in exercise of right of private defense. The second shot by Ashwani hit Ram Naresh and he fell. Anil Kumar who tried to pick the gun of his father was immediately shot by Rajesh Kumar, Mithlesh Kumar and Atul Kumar. He died on the spot. The accused then attacked the informant and his other family members present, but they fled to save their lives. Ashwani Kumar took away the licensee gun of Ram Naresh with him.

(3.) On 18/2/1999 the police arrested the accused persons from Hanuman Mandir before village Vasiyat Kheda. Upon search, a single barrel gun, factory made, gun no.6382 and four live cartridges( 12 bore red colour), out of which three were of No.1 and one was of No.2, in the leash kept on shoulder were recovered from the possession of appellant Ashwani Kumar. In furtherance of this recovery, the FIR dtd. 18/2/1999 arising out of Case Crime No. 51/99 under Sec. 25 Arms Act, P.S. Bangarmau, District Unnao was registered.