The distinction between intention and motive is crucial in determining the nature of the offence, and the duty to separate evidence for each accused is essential in criminal cases.

Surendra Vikram Singh Rathore, J. –

Mr. R.P. Misra, learned counsel for the appellant, and Mrs. Ruhi Siddiqui, learned AGA for the State, were heard at length.

2. Under challenge in the instant criminal appeal is the judgment and order dated 15.12.2010 passed by 1st Additional Sessions Judge, Gonda, in Sessions Trial No.266 of 2007 arising out of Case Crime No.14 of 2007, under Sections 147, 148, 302/149 IPC, Sessions Trial No.267 of 2007 arising out of case Crime No.15 of 2007, under Sections 25/27 of the Arms Act and Sessions Trial No.35 of 2008 against Dileep Singh arising out of case Crime No.16 of 2007 under Section 30 of the Arms Act, Police Station Katra Bazar, District Gonda, whereby the present appellant Durgesh Kumar Singh was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of ten months' additional rigorous imprisonment. He was further convicted for the offence under Section 25 /27 of the Arms Act and was sentenced with three years' rigorous imprisonment and also with fine of Rs. 1,000/- with default stipulation of one month's additional rigorous imprisonment. Both the sentences were directed to run concurrently. By the same judgment, Dileep Kumar Singh, who took his trial for the offence under Section 30 of the Arms Act, was also convicted. However, he was granted benefit of Section 3 of the Probation of Offenders Act. The other accused persons, who also took trial with the present appellant, were granted benefit of doubt and were acquitted of all the charges levelled against them.

3. Admittedly, no appeal has been preferred by the State challenging the acquittal of other accused persons.

4. In brief, the case of the prosecution was that the first information report of this case was lodged by one Badri Nath Tiwari at Police Station Katra Bazar on 06.02.2007 at 11.30 AM alleging therein that Vinod Kumar Singh son of late Lallu Dubey is resident of his village and is also his relative. His land is situated adjacent to the house of Awadh Raj Singh. On 06.02.2007 at 09.30 AM appellant Durgesh Kumar Singh along with his brothers namely Anil Kumar Singh, Santosh Kumar Singh and his father Awadh Raj Singh son of Vijay Raj Singh formed an unlawful assembly. Appellant Durgesh Kumar Singh was armed with a DBBL gun of his elder brother Dileep Kumar Singh and the remaining accused persons were armed with illegal weapons. They were taking the possession of land of Vinod Kumar forcibly. In the meantime, Raghavram reached there and asked the accused persons not to do so then the accused persons said that they will take possession of the land and you may do whatever you like. On this reply, Raghavram raised alarm then Awadh Raj Singh exhorted his sons to kill him and on his exhortation, appellant Durgesh Kumar Singh fired two shots with the licensed double barrel gun on Raghav Ram due to which he fell down. Hearing the noise, Parashuram, Shiv Dass and Hariram of the village also reached there who had seen the incident. It was also alleged that the accused persons had also surrounded the complainant but because of the arrival of the village persons they ran away from the place of occurrence. The complainant took his injured brother to the District Hospital, Gonda, where he was declared dead. Leaving the dead body in the mortuary, the complainant went to lodge the first information report of this case and the same was registered at 11.30 AM. Prior to that at 11.15 AM information of death of Raghavram Tiwari was sent by the hospital to the Police Station Gonda through ward boy Gherau Prasad on the basis of which inquest proceedings were conducted and after completing necessary formalities, the dead body was sent for postmortem which was conducted on 06.02.2007 at 04.00 PM. The duration of death was about 1/2 day and following ante-mortem injuries were reported by the doctor: -

(i) Firearm wound of entry in an area of 10 cm x 3