MITHLESH AND ANOTHER Vs. STATE OF U P

JUDGEMENT

(1.) The instant appeal has been preferred against the common judgment and order dated 11.5.2004 passed by the Additional/ Special Judge, E.C. Act, Basti in S.T. No. 148 of 2001 (State Vs. Mithlesh) and S.T. No. 149 of 2001 (State Vs. Shailesh) arising out of case Crime No. 339 of 2000, police station Parsrampur, district Basti whereby both the appellants have been convicted under Section 302 read with Section 34 I.P.C. for life imprisonment with fine of Rs. 2,000/- each and in default of payment of fine both the appellants were directed to serve additional sentence of one month.

(2.) It is pertinent to mention that a separate trial was proceeded against the accused appellant Shailesh Tiwari in respect of offence under Section 3/25 Arms Act, which is the offshoot of (case Crime No. 339 of 2000) in case crime number 59 of 2001, police station Parasrampur, district Basti as S.T. No. 288 of 2001. By the impugned judgment the appellant Shailesh Tiwari however has been acquitted of the charge under Section 3/25 Arms Act.

(3.) The prosecution case in a short conspectus is that a first information report was lodged by Sita Ram Pandey in respect of the incident occurred at 8 A.M. on 1.11.2000 alleging therein that he is a resident of village Dhuniya, police station Parasrampur, district Basti. On 1.11.2000 his brother who is an Advocate by profession had left his house for civil court along with Parma Nand Shukla at 8 A.M. when he reached in front of the house of Setu Bhuj at that juncture Mithlesh, Shailesh Tiwari and Rakesh @ Bablu all sons of Ramyagya resident of village Chhapiya, police station Paikaliya, district Basti came on a motorcycle and attacked upon him on account of old enmity of property dispute. All the three persons had whipped out country made pistol and revolver and made indiscriminate firing upon Deena Nath Pandey at this Parma Nanad Shukla had made hue and cry on account of which various persons came on the spot. The complainant Laxmi Narain and Setu Bhuj also reached at the spot. All the accused persons escaped towards Baijalpur on the motorcycle brandishing Katta and revolver. Deena Nath Pandey died on the spot. The complainant was also going to market from his house. He was accompanied with Bhav Nath Pandey son of Kashi Nath. All the persons had witnessed the incident and recognized the accused persons. The dead body of his brother was lying on the spot and had come to lodge the report to take action. A question was asked as the house of Setu Bhuj situate in which village it was answered by the complainant that it is in village Parsahwa. On this information the first information report was lodged at about 9.45 A.M. on the same day, which was registered as case crime No. 339 of 2000, under Section 302 I.P.C. at police station Parsarampur, district Basti against the accused persons, namely, Mithlesh, Shailesh and Rakesh @ Bablu, all sons of Ramyagya. The accused/appellants whose trial was separated from the accused Rakesh Tiwari, had faced the trial and convicted by the order impugned.