(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Heard Mr. Pawan Singh Pundir, learned counsel for the appellant, Mr. Nagendra Bahadur Singh, learned A.G.A. for the State and perused the record.

2. Since both the appeals arising out of a common impugned judgment and order dated dated 06.11.2009, passed by the Additional Session Judge, Meerut in Session Trial No.509 of 2007, therefore, both the appeals are being decided by this common judgment.

3. Both the appeals have been filed against the common impugned judgment and order dated 06.11.2009, passed by the Additional Session Judge, Meerut in Session Trial No.509 of 2007, whereby the present appellant had been convicted for offence punishable under Section 302 I.P.C. Accused Kadir was convicted for the offence punishable under Section 302 read with Section 34 I.P.C. Both the appellants sentenced to undergo for life imprisonment along with fine of Rs.20,000/- each. In default of non-payment of fine, they shall suffer further one year rigorous imprisonment. The appellant Vijay Pal Yadav and Kadir Ansari were convicted for offence punishable under Section 452 I.P.C. and sentenced them for 5 years rigorous imprisonment with fine of Rs.5,000/-. In default of non-payment of fine, they shall undergo one year rigorous imprisonment. The accused persons were convicted for offence punishable under Section 506 I.P.C. and sentenced for 5 years rigorous imprisonment and fine of Rs.5,000/-. In default of non-payment of fine, they shall suffer further 6 months rigorous imprisonment. In other Session Trial No.673 of 2007, the appellant Vijay Pal Yadav was convicted under Section 25 of Arms Act and sentenced to 3 years R.I. with fine of Rs.5,000/-. In default of non-payment of fine he shall suffer 6 months further rigorous imprisonment. All the sentences shall run concurrently.

4. Brief facts of the case.

(I) On 02.04.2007, the complainant Naiyyar Alam wrote a complaint and stated therein that at about 1:30 p.m., the appellant Vijay Pal Yadav with his friend Kadir came to his house and started quarreling with his brother (deceased) and abusing him. They were asking money of Rs.2,000/- which was taken by his brother from accused Vijay Pal Yadav. The accused Vijay Pal Yadav asked the money returned back to him by his brother. His brother Kabul told him that at this time, he had no money and he will return back after sometime. The appellant taken out the country-made pistol and fired upon his brother with intention to kill him. Due to the fire arm injury his brother had collapsed, the accused persons while abusing the others present at site, fled away from the scene. The complainant and other persons present on the site admitted injured Kabul to medical college for treatment. He stated in the complaint that after admitted the deceased Kabul, he went to police station to lodge the F.I.R. against accused persons. The F.I.R. was lodged under Section 307 read with Section 504 and 506 I.P.C. against the accused persons. After the death of the deceased, the F.I.R. which was lodged under Section 307 I.P.C. against accused persons was converted into 302 I.P.C.

(II) The dead body was sent for post-mortem and PW-7 Dr. A.K. Gupta conducted the post-mortem of the dead body of the deceased and found the following injuries :

i. Stubbornness in whole body.

ii. Swelling and blackening on right (daily) eye.

iii. Lacerated wound of 2 cm x 1 cm x cavity deep on left eye around which there was blackening on internal examination, it was found that internal layers were lacerated.

III. At the instance of the accused Vijay Pal Yadav, Sub-Inspector Jayant had recovered a country-made pistol of 315 bore along with a live and an empty cartridges and made recovery memo as Ex.Ka-8. The accused Vijay Pal Yadav and accused Kadir were arrested and arrest memo was prepared as Ex.Ka-15. After completion of the investigation, charge-sheet under Section 302, 504 and 506 I.P.C. read with Section 34 I.P.C. was filed against t