KAMLESH @ KABADI Vs. STATE OF U.P.

JUDGEMENT

(1.) These two appeals have been preferred by the appellants Kamlesh alias Kabadi and Babloo alias Bhoori against the judgement and order dated 04.04.2011 passed by the Additional Sessions Judge / Special Judge, E.C. Act, Jalaun at Orai in S.T. no. 63 of 2008 (State vs. Babloo alias Bhoori and another), arising out of Case Crime no. 773 of 2006, under Sections 302/34, 504 and 506(2) I.P.C., P.S. Kalpi, district-Jalaun, by which the appellant, Kamlesh alias Kabadi has been convicted under Section 302 I.P.C. and sentenced to life imprisonment and a fine of Rs. 5000/- and in default of payment of fine two years additional R.I., while accused-appellant, Babloo alias Bhoori has been convicted under Section 302/34 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine three years additional R.I.

(2.) In brief the prosecution case as spelt out in the written report (Ext.Ka-2) lodged by the Anil Kumar PW2 at police station-Kalpi, district-Jalaun is that while the complainant's brother Atul was standing at Hariganj crossing at about 8:00 p.m, Babloo alias Bhoori son of Harishankar Ahirwar, resident of Hariganj and Kamlesh alias Kabadi son of Parmu Ahirwar, resident of Mirza Mandi came near his brother and when he asked them why they had insulted his aunt's son Shiva, they started abusing Atul and when Atul objected they threatened him with dire consequences and accused-appellant Babloo alias Bhoori shot the complainant's brother Atul with his fire arm with the intention of causing his death which hit Atul on his head and although he ran towards his house in an injured state but he fell on the ground. Accused-appellant Babloo alias Bhoori and Kamlesh alias Kabadi ran towards Julathi Mohalla. The episode was fully witnessed by Jeevan son of Bihari and Arjun son of Ram Gopal, who are residents of same locality. The injured Atul was taken to Kalpi Hospital by his father where the Doctor had immediately referred him to Kanpur. On the basis of the aforesaid written report of the complainant Anil Kumar, chek F.I.R. (Ext.Ka-3) was prepared and relevant G.D. entry (Ext.Ka-4) was also made and Case Crime no. 773 of 2006, under Section 307 I.P.C. was registered at police station-Kotwali Kalpi against the accused-appellants.

(3.) The Investigating Officer of the case during the process of investigation recorded statements of several witnesses under Section 161 Cr.P.C. After the death of Atul Kumar his inquest report (Ext.Ka-8) was prepared by S.I. Girwar Giri PW7 on 23.10.2006, who also prepared the site plan of the place of occurrence (Ext.Ka-6) after inspecting the same and other relevant documents namely letters addressed to R.I. and Chief Medical Officer (Ext.Ka-9 & Ext.Ka-10, Photonash (Ext.Ka-11), Police Form-13 (Ext.Ka-12). He also recovered blood stained earth from the place of occurrence and prepared recovery memo (Ext.Ka-7). The postmortem of the cadaver of the deceased Atul was conducted on 24.10.2006 at about 2:30 p.m. by Dr. L.R. Ahirwar PW-5 and his postmortem report is on the record as Ext.Ka-5. The Investigation of the case, after it being converted to one under Section 302 I.P.C. was transferred to PW9 Vikramjeet Singh who after completing the investigation submitted charge sheet against both the accused-appellants under Sections 302/504/506 I.P.C. before the Chief Judicial Magistrate who after taking cognizance on the same committed the case for the trial of the accused to the court of session by his committal order dated 29.02.2008, from where, after being registered as S.T. no. 63 of 2008 (State vs. Babloo alias Bhoori and another) the case was made over to the court of Additional Sessions Judge/ Special Judge, E.C. Act, Jalaun at Orai for the trial of the accused. Learned Addl. Sessions Judge / Special Judge E.C. Act after hearing the accused-appellants on the point of charge, framed charge against them under Sections 302/34, 504 and 506 I.P.C. The accused pleaded not guilty and claimed trial.