Hon’ble Anil Kumar Srivastava-II, J.—Instant appeal has arisen against the judgment and order dated 5.6.2007 passed by learned Additional Sessions Judge,Court No. 8, Faizabad in Sessions Trial No. 408 of 2004 arising out of Case Crime No. 407 of 2004, Police Station Kotwali Nagar, District Faizabad whereby the learned trial Court has convicted the accused-appellant Sandeep Shukla @ Gopal Shukla under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 30,000/- with default stipulation of two years’ rigorous imprisonment. Learned trial Court has acquitted the accused appellant under Section 394 and 411 IPC. Accused-appellant Mukesh Kumar Gupta was also acquitted under Section 302 read with 34 IPC and Section 394, 411 IPC while accused Arvind Shukla is acquitted under Section 302 read with 34 IPC and 394 IPC.

2. According to the prosecution, on 22/23.2.2004 at 00.30 a.m. informant Ram Prasad Gupta, P.W.1 submitted a written report at Police Station Kotwali Nagar, District, Faizabad stating that he is the manager of Ramdev Damodhar Das Smriti Bhawan, Faizabad. Dhannajay Pandey deceased alongwith his driver came in the ‘Dharmshala’ on 18.2.2004 by Maruti Van No. U.P.78 A.G. 0603. One room was taken on rent. On 22.2.2004, there was heavy rush as ‘Barat’ of daughter of Shukla Cycle Subhash Nagar came in the ‘Dharmshala’. Complainant was sitting with Dhananjay Pandey from 09.30 p.m. to 10.00 p.m. Complainant asked Dhananjay Pandey to go to his room. Dhananjay Pandey told him that his driver has gone for dinner and he would sleep after he arrives. Informant went to his room. After about an hour, driver of the deceased knocked the door of informant. On opening the door, informant found the driver Gopal in unconscious condition. There were scratches on his chest. ‘Baratis’ were surrounding him. Informant went to the room of Dhnanjay Pandey. He found that Dhananjay Pandey was lying on floor near the door in the room. Blood was oozing from his mouth and nose. He was dead. He was wearing a towel. He was semi nude. There were injuries near his private parts. Semen was also found near his penis. No commotion was found in the room.

3. A case under Section 302 IPC was registered at Crime No. 407 of 2004. Investigation was handed over to S.S.I Hari Ram Kashyap. On 23.2.2004 at 7.00 a.m. inquest proceedings were conducted by the investigating officer Hari Ram Kashyap. Injuries found on the body of deceased were noted down. Photography was also done. Bloodstained rug and underwear, cutter blade and broken blade, semen, plain and bloodstained earth and receipt books were recovered by the investigating officer. Accused was taken to District Hospital, Faizabad by home-guard on 22.2.2004 at 11.55 p.m. for his medical examination where he was admitted in emergency.

4. On 23.2.2004, an application was given by Gaurav Agrawal stating that his firm M/s. Devi & Company and M/s. Chandra Kishore, Ashok Kumar and sons is situated at 48/226 Generalganj, Kanpur. Sri Dhananjay Prasad Pandey who is an employee and driver Sandeep Shukla @ Gopal Shukla left Kanpur on 18.2.2004 for collecting money from Faizabad and nearby Districts. On 22.2.2004 at about 12.30 in the night, he received information from P.S., Kotwali that Dhananjay Pandey has been murdered. He came to Faizabad, where he came to know that Dhananjay Prasad Pandey was murdered and driver Sandeep Shukla @ Gopal Shukla is injured. Receipt books are found in the room of the deceased, from which he came to know that Rs. 7,47,204/- were collected by the deceased which has been looted. On the basis of this information, case was altered under Section 394 IPC.

5. Post-mortem of the dead body of Dhananjay Pandey was conducted on 23.2.2004 at 3.30 p.m. by P.W.10 Dr. Anurag Kumar Rajwanshi wherein the cause of death was found as ante-mortem injuries. Site plan was prepared. Statement of witnesses were also recorded.

6. On 25.2.2004 Inspector incharge of Police Station Kotwali Kail