SHIV KUMAR FAUJI Vs. STATE OF U P

JUDGEMENT

(1.) Head Sri Siddharth Srivastava assisted by Satyaveer Singh and Dharmendra Pratap Singh, learned counsels for the appellant and Sri Saghir Ahmad, Kumari Meena and Hasan Abidi, learned AGA in opposition and perused the record.

(2.) This Criminal Appeal is directed against judgment and order of conviction dated 11.10.2004 passed by the Court of Additional Sessions Judge, court no.8, Aligarh in Sessions Trial No.913 of 2003, State Vs. Shiv Kumar Fauji and another under Sections 302, 307, 120B IPC arising out of Case Crime No.153 of 2003, Police Station- Banna Devi, District Aligarh. Appellant Shiv Kumar Fauji has been sentenced to 7 years R.I. coupled with fine Rs.5000/- with default stipulation for additional three months imprisonment, under Section 307 IPC, also sentenced to life imprisonment and fine of Rs.10,000/- and in the event of default, six months additional imprisonment under Section 302 IPC. By the same judgment another co-accused Usha (wife of appellant) has been exonerated of charges under Sections 302, 120-B IPC.

(3.) Sketch of prosecution case, as unfolded by the first information report indicates that first informant Rishi Kumar Bhardwaj P.W.1 lodged written report at Police Station Banna Devi on 1.6.2003 at about 4.30 P.M. against the appellant Shiv Kumar Fauji and his wife Usha with averments that informant's brother Shiv Kumar Bhardwaj runs medical store in front of Purna Giri Temple on ITI Road. Accused Shiv Kumar Sharma resides in Ram Nagar locality near the aforesaid medical shop as tenant in the house of Deshraj Singh. He is employed in the army. About 15 days prior to the incident there was some altercation between informant's brother (Shiv Kumar Bhadwaj) and Usha (wife of appellant), whereupon matter was settled by intervention of the other people. After few days of settlement, son of Shiv Kumar Sharma Fauji had disappeared and the appellant and his wife Usha had apprehension that informant's brother had a hand behind disappearance of his son Rahul. Shiv Kumar Sharma had come home on leave. Today on 1.6.2003 some idol installation ceremony was to be held in the Purna Giri Temple and informant's brother (Shiv Kumar Sharma) was present at the ITI Gate, in the meanwhile, informant along with Sunil Kumar Sharma, (brother-in-law of Shiv Kumar Bhardwaj) were coming from Jakrabad side Crossing towards Purna Giri Temple for participating in the ceremony. As soon as they reached in front of ITI Gate when Shiv Kumar Fauji was seen saying to him (informant's brother) that he has caused disappearance of his son. As the first informant proceeded towards the bridge then Shiv Kumar Fauji Possessing DBBL gun with intention to kill his brother fired on him, which fire incidentally deflected after hitting on his hand and hit rickshaw puller Dinesh son of Tarachand. Rickshaw Puller fell down and cry was raised on the spot. Assailant immediately fired on first informant's brother then he also fell down. The assailant after extending threat to the first informant made his escape good from the place of occurrence. At that point of time Veer Pal Singh son of Mohan Singh, Ramesh Chandra son of Yadram Kasyap and Bunty son of Gaden Singh etc. had also arrived and they witnessed the incident. The incident took place around 4 P.M. Because of offence panic was created in and around the area and people ran helter-skelter. Usha wife of appellant had also threatened 15 days prior to the incident on the medical store of informant's brother that he has caused disappearance of his son, she will take revenge. It was requested that Smt. Usha has also conspired with the accused. Report be lodged and action be taken. This written report is Exhibit Ka-1.