Honble SHARMA, J.–Rajendra Sahu, an auto-rikshaw driver, did not know what the `unborn next moment held for him. While he was sitting on his auto-riksha at autostand, his assassin came in a Maruti car, called him near the car and opened fire at him. Injured Rajendra Sahu was removed to the Hospital where he breathed last. Sudhir Kumar Jain, appellant herein, along with co-accused Sahilendra Gautam, was indicted for having committed murder of Rajendra Sahu before the learned Additional Sessions Judge (Fast Track) No.1 Kota, who vide judgment dated November 25, 2003, while acquitting co-accused, convicted and sentenced the appellant as under:-

Under Section 302 IPC :

To suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer simple imprisonment for three months.

Under Section 3/25 Arms Act :

To suffer rigorous imprisonment for two years and fine of Rs.1000/-, in default to further suffer simple imprisonment for one month.

The substantive sentences were ordered to run concurrently.

(2). The prosecution case is woven like this:-

Raghunath Suman (Pw.22) ASI Police Station Dadabari Kota on April 17, 2003 recorded Parcha Bayan (Ex.P-22) of injured Rajendra Sahu (since deceased) at MBS Hospital Kota wherein he stated that at around 9.45 AM on the said day he came to the auto-stand near Baheti Hospital in his autoriksha bearing No.RJ-20P/5505. Around 12 Noon while he was sitting on his auto-riksha he saw one Maruti 800 bearing No.RJ-06C-3432 coming from the side of Talwandi and got halted in front of auto-stand. Three persons were sitting inside the car. Out of them one person half opened the glass of left front side gate of the car and signaled him to come nearer to the car. He then got down of auto-riksha and went near the car. In the meanwhile the person, who was sitting on the left front side of the car armed with Desi Katta (country made pistol), opened fire at him as a result of which he received injuries just above his navel and blood started oozing out. The persons sitting in Maruti car drove the car towards aerodrome. Iqbal then took him to the hospital in auto-riksha. On that parcha bayan a case under Section 307/34 IPC was registered and investigation commenced. Statements of witnesses under Section 161 Cr.P.C. were recorded. During the course of investigation Rajendra Sahu succumbed to his injuries and Section 302 IPC was added. Necessary memos were drawn, the accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Kota. Charges under Sections 302, 302/34 IPC and 3/25 Arms Act were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 31 witnesses and got exhibited the documents. In the explanation under Section 313 Cr.P.C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.

(3). We have heard learned counsel for the appellants and learned public prosecutor and with their assistance scrutinised the material on record.

(4). Rajendra Sahu vide Postmortem Report(Ex.P9) received following ante mortem injuries:-

1. Multiple punctured wound (wounds of entering of fire arms) of size 3/4 x 1/2 cm in the area 18cm x 8cm on the lower part of Rt. side of chest over the upper part of abdomen Rt. side with blackening

2. Stitched wound 20cm longer on the left preandi region abdomen.

3. Stitched wound 9cm longer Rt. flate of abdomen.

In the opinion of Dr. R.K. Sharma (Pw.26) the cause of death was shock as a result of firearm injuries to intestine at liver sufficient to cause death in the ordinary course of nature.

(5). Shimbhu Dayal (Pw.2), Iqbal (Pw.4), Dilip Kumar (Pw.9) and Farookh Mohammad (Pw.17) did not support the prosecution case and they were declared hostile. According to them they did not see

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