JUDGMENT :

Anil Kumar Upman, J.

1. The instant Criminal Appeal has been filed by the accused- appellants under Section 374 of Cr.P.C. being aggrieved of the judgment dated 05.10.2021 passed by learned Additional Sessions Judge No.1, Tijara, District Alwar in Sessions Case No.85/2014 whereby they have been convicted for offences punishable under Sections 302 & 302/34 of IPC and Section 3/5 of Arms Act and sentenced as under :

2. Both sentences were ordered to be run concurrently.

3. The brief facts of the case are that the complainant, Baney Singh (PW-2), filed a report (Ex-P/2) stating that on 07.05.2014, between approximately 7:30 and 8:00 AM, his brother, Mahendra Tanwar, was returning home after dropping his nephew at the bus stop for school. During this time, Mahendra Tanwar was shot and killed by unknown assailants, who were standing near an ironing shop located in the Chowk of Sector 7. According to the complainant, there were three accused, one of whom appeared stout while the other two appeared to be childlike. They were reportedly riding a black Pulsar motorcycle without a number plate. On the basis of said report, an FIR No.162/2014 (Ex.P/51) was registered at the Police Station, Bhiwari Phase-III for offence punishable under Section 302/34 of IPC and investigation was commenced.

4. After thorough investigation, the police filed a charge-sheet against the accused-appellants before the concerned Court for the offences under Sections 302, 120B & 34 of IPC and Section 3/25 of Arms Act.

5. Thereafter, the case was committed for trial to the Court of Additional Sessions Judge No.1, Tijara, District Alwar (hereinafter referred to as the ‘learned trial Court’). Learned trial Court framed charges against the appellants under Sections 302 or 302/34 & 120B of IPC and Section 3/25 of Arms, which were denied and trial was claimed.

6. The prosecution in support of its case examined as many as 19 witnesses and got exhibited 67 documents. Details of which are reproduced as under:

List of witnesses:

7. The accused-appellants were examined under Section 313 Cr.P.C. wherein they denied the allegations levelled by the prosecution and stated that they had been falsely implicated in this case.

8. At the conclusion of the trial, the learned trial Court, vide impugned judgment dated 05.10.2021 found the accused- appellants guilty for offences under Sections 302 & 302/34 of IPC and Section 3/25 of Arms Act and as a consequence, convicted and sentenced them as mentioned above. Hence, this appeal.

9. Learned counsel appearing on behalf of the accused- appellants submitted that the learned trial Court failed to properly appreciate the evidence available on record and that the findings of conviction recorded against the accused-appellants are not supported by any proper or judicious assessment of the evidence adduced during trial. Rather, the conclusion arrived at by the trial Court seems to be based on surmises, conjectures, and assumptions unsupported by reliable and cogent evidence. Counsel submitted that the complainant is not an eye-witness of the incident and the so-called eye-witnesses of the case namely Rahul (PW-7), Devendra (PW-8) & Ravindra (PW-9) had deposed in their testimony that at the time of alleged incident, they were present in a park situated near the place of alleged incident. Counsel submitted that no park was situated near the place of alleged incident. The three so-called eye-witnesses are the relatives of the deceased and they gave false testimony just in order to implicate the appellants in the alleged crime. If these three eye-witnesses were present at the place of alleged incident, they would have participated in the panchnama proceedings, but they did not participate in the same. Thus, their testimony as well as their presence at the place of alleged incident is very doubtful and unreliable. The trial Court failed to take notice of the material inconsistencies, omission and improvements in the testimony of these eye-witnesses.