RAJENDR YADAV Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Rajendra Prasad,learned counsel for the appellant and learned Additional Government Advocate.

(2.) This Criminal Appeal under Sec. 374(2) of Criminal Procedure Code (hereinafter referred to as Cr.P.C.) has been filed against the judgment and order dtd. 27/1/2000 passed in Session Trial No.432 of 1994 (State versus Rajendra Yadav) by Ist Additional Sessions Judge, Unnao, by means of which the appellant Rajendra Yadav has been convicted and sentenced under Sec. 307 IPC to undergo 7 years rigorous imprisonment and Rs.5000.00 as fine and in default of payment of fine to further undergo 1 year rigorous imprisonment.

(3.) Learned counsel for the appellant submitted that the appellant has falsely been implicated in the case and the trial court, without considering the evidence and material on record appropriately, has convicted the appellant and sentenced him as above. He further submitted that the presence of P.W.1 and P.W.2 at the place of incident itself is doubtful. He also submits that the injury sustained by the appellant cannot come in the facts and circumstances of the case because as per the evidence of the injured, while he was going towards North-West, the fire was made by pistol by the appellant from East and in such circumstances the said injury could not have come at 10'o clock to niple in chest. He further submitted that no source of light has been shown at the place of incident either in the F.I.R. or in the evidence and only a lantern was at some distance but the recovery memo of torch has been shown. He also submitted that the F.I.R. is anti-dated and there is contradiction in the story, as such, the same is concocted. He also submitted that the trial itself was faulty because statement of injured Shyam Lal was neither recorded under Sec. 161 Cr.P.C nor given to the appellant, therefore, he has been denied the opportunity to contradict to the injured about his previous statement. He also submitted that there is contradiction in the evidence of the investigating officer and the Constable. The scriber of F.I.R. has not been got examined. None of the independent eye witness has been got examined. The trail of blood has not been found on the spot. He relied on Gopal Krishna versus State; AIR 1964 All 481 and Shankar Lal and others versus State; AIR 1954 All 779.