RAJESH Vs. STATE

JUDGEMENT

(1.) Heard Shri Vimal Kishor Singh, learned Counsel for the appellant and Ms. Mamta Pandey and Shri Alok Tiwari, learned A.G.A. for the respondent/State.

(2.) This criminal appeal under Sec. 374 (2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant, Rajesh, challenging the judgment and order dtd. 16/11/2002 passed by the Additional Sessions Judge/Fast Track Court no.3, Sitapur in Sessions Trial No. 414 of 2001: State of U.P. vs. Rajesh, arising out of Case Crime No. 117 of 2000, under Ss. 452/307 Indian Penal Code, Police Station Ataria, District Sitapur, whereby the appellant was convicted and sentenced as under :-

(3.) The prosecution case, as per the written report dtd. 4/8/2000 (Ext.Ka-1), is that in the intervening night of 3/4/8/2000, the daughter of the informant-Vidyadhar (P.W.1), namely, Kusma (P.W.2) and Sona Devi (P.W.3) were lying in the courtyard and his son, namely, Makhan (P.W.4) was lying on the terrace and other members of the family were lying outside. Around 1 O'clock in the night, accused-Rajesh break through into his house, upon which both his daughters (Kusma and Sona Devi) woke up after hearing the sound and started raising alarm. Consequently, accused-Rajesh opened a fire from his country-made pistol, which hit on the right shoulder and temples (kanpati) of his daughter Kusma (P.W.2). On the noise of fire everyone woke up and then the accused-Rajesh ran away from his house. Vishambhar, Baburam and other people of the village had chased the accused-Rajesh, however, due to night, they could not catch the accused-Rajesh. The informant Vidyadhar (P.W.1), his family members and villagers saw the accused-Rajesh in the torch light clearly and identified him. It has also been alleged that accused-Rajesh is thief and has went several times to jail for committing theft.