ANIL KUMAR SRIVASTAVA-II, J.

1. Heard Shri Nagendra Mohan, learned counsel for the appellants, Shri M.Y. Ansari learned A.G.A. And Shri S.S. Rajawat, learned counsel for the complainant.

2. Instant appeal has arisen against the judgment and order dated 04.11.2011 passed by learned Additional Sessions Judge, Court No. 2, Lakhimpur Kheri in Sessions Trial No. 654 of 2006, State v. Sachin alias Dalu Gupta and Amit Sharma whereby accused were convicted and sentenced to imprisonment for life and fine of Rs. 5000/- with default stipulation of two years imprisonment under section 302 IPC. Accused were acquitted for the charges under section 7 of Criminal Law Amendment Act and 3/25/27 of Arms Act.

3. During pendency of the appeal accused Sachin alias Dalu Gupta died, vide letter of Chief Judicial Magistrate Kheri dated 3.7.2015.

4. According to the prosecution version, complainant Ram Guni Verma is mother of the deceased Shyamu Verma. Shyamu Verma was doing business of property dealing. Accused Sachin Gupta alias Dalu was also working with him. They had some dispute over some transaction of money about ten days prior to the date of incident. Sachin Gupta was inimical to the deceased and was trying to maintain his supremacy in the business. On the date of incident, i.e., 08.02.2006, deceased Shyamu Verma had gone to purchase gutka pudiya from a khokha of Anwar in front of the house of Sachin Gupta. Accused Sachin Gupta and Amit Sharma were present there and fired upon Shyamu Verma by country made pistol. Complainant along with her daughter Ram Janki and servant Vinod son of Sankata Prasad were coming back from the market at about 03.00 PM. Complainant reached at the spot and started crying to save her son but none came for the rescue, rather there was chaos in the passerby persons. Complainant took Shyamu Verma with the help of servant Vinod to the District hospital from where doctors referred him for Lucknow but on the way to Lucknow near Oel deceased succumbed to his injuries. Complainant came back and kept the dead body in the District hospital Lakhimpur Kheri.

5. Thereafter, a written report of the incident was lodged by her on 08.02.2006 at 05.15 PM which was registered at case crime no. 332/06 under section 302 IPC and 7 Criminal Law Amendment Act at Police Station-Kotwali Sadar Kheri. Investigation was handed over to the SHO Vikas Narain. After registration of the first information report, investigating officer reached at the spot and recovered blood stained and plain concrete. Site plan was also prepared. Four empty cartridges 315 bore, one live cartridge 315 bore and one lead cartridge 315 bore were also recovered from the spot. Inquest proceedings were conducted which began on 09.02.2006 at 09.00 AM and concluded on 09.02.2006 at 10.30 AM. Dead body was sealed and sent for postmortem. Postmortem of the dead body of the deceased was conducted on 09.02.2006 at 02.00 PM. During investigation accused were arrested by the police on 17.02.2006 and country made pistol and cartridges were recovered from their possession. Prosecution sanction was obtained from the District magistrate Kheri. Underwear, black shirt along with tabiz, blood stained and plain concrete were sent to the Forensic Science Laboratory. Human blood was found on underwear. Statement of witness were recorded by the Investigating Officer. After conclusion of the investigation charge sheet was submitted against the accused.

6. Accused were charged under section 302 IPC read with section 34 IPC and Section 7 Criminal Law Amendment Act and also under section 3/25/27 Arms Act.

7. In order to prove its case prosecution has produced PW-1 Ram Guni, complainant mother of the deceased, PW-2 Vinod Kumar eyewitness and servant of the complainant, PW-3 Vikas Narain Yadav Investigating Officer and witness of recovery of country made pistol, PW-4 SSI Krishna Chandra Tiwari witness of recovery, PW-5 Dr. Akhilesh Khare who has conducted the postmortem of the body of the deceased