(1.) Mr. Rajendra Prasad Mishra, learned counsel for the appellants and Sri Mohd. Yusuf Ansari, learned A.G.A. for the State were heard at length.
(2.) Instant criminal appeal has been preferred by appellants-Rajesh, Rakesh and Brijesh challenging the judgment and order dated 14.08.2008 passed by learned Additional Sessions Judge (F.T.C. Court No.1), Ambedkar Nagar, in Sessions Trial No.18 of 2007, arising out of Case Crime No.355 of 2006, under Sections 302/34, IPC, Police Station Kotwali Tanda, District Ambedkar Nagar, whereby all the appellants were convicted for the offence under Section 302/34 IPC and were sentenced with imprisonment for life and also with fine of Rs.10,000/- with default stipulation of one year's additional rigorous imprisonment. Appellant Rakesh was further convicted for the offence under Section 4/25 of Arms Act and was sentenced to undergo one year's rigorous imprisonment and also with fine of Rs.1000/- with default stipulation of two months additional imprisonment.
(3.) In brief, the case of the prosecution was that the complainant Ram Saran Shukla lodged an FIR at the Police Station Kotwali Tanda, District Ambedkar Nagar on 27.09.2006 at 00.30 hours alleging therein that in the intervening night of 26/27-09.2006 at 9.30 p.m. he was coming back from Tanda to his house. He had gone to attend the 'Durga Pooja' at Hari Nagar crossing. His younger brother Radhey Saran Shukla was also present there. While they were coming back from Durga Pooja to their houses with torches in their hands and reached near railway crossing then they heard some unusual noise. On flashing their torches, they saw that in the paddy field of Jokhu Verma his brother Krishna Saran was being assaulted with axe, Gehdala ( a sharp heavy cutting weapon) and knife by appellants Rajesh, Rakesh and Brijesh who happens to be real brothers and sons of Shiv Pujan of his own village. When these persons raised alarm and ran towards the deceased then all the three accused persons turned towards them and challenged them that in case they come forward then they shall also be killed. Thereafter, the accused persons ran away in the west south direction. When these persons came near the deceased then they found that his brother had received serious injuries in his head and he was gasping. While these persons were planning, how to provide treatment in the meantime he succumbed to the injuries. Leaving the dead body on the spot the complainant went to lodge the FIR of this case and on the basis of same the case was registered.