The main legal point established in the judgment is the acceptance of reliable ocular testimony even in the presence of contradictions in medical or ballistic reports.

JUDGMENT :

Ritu Raj Awasthi, J.

1. Heard Mr. Subodh Kumar Shukla, learned counsel for the appellant as well as Mr. Umesh Verma, learned Additional Government Advocate assisted by Mr. Ashok Kumar Sharma, learned AGA for the State and perused the material available on record along with lower Court record.

2. The instant criminal appeal has been preferred by the appellant, namely, Babloo Ghosi challenging the judgment and order dated 24.3.2006 passed by learned Additional Sessions Judge, Court No. 1, Unnao in Sessions Trial No. 621 of 2004, relating to case Crime No.1140 of 2004, under Section 302/34 IPC, Police Station Kotwali, District Unnao and Sessions Trial No.622 of 2004 relating to case Crime No.1151 of 2004 and 1152 of 2004, under Section 3/25 Arms Act, Police Station Kotwali, District Unnao, whereby the appellant has been convicted for the offence under Section 302/34 IPC and sentenced with imprisonment for life and fine of Rs. 5000/-, in default of payment of fine to undergo six months additional imprisonment and has been convicted for the offence under Section 3/25 Arms Act and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs. 2000/-, in default of payment of fine three months additional imprisonment. Both the sentences shall run concurrently.

3. It is to be noted that Criminal Appeal No. 734 of 2006 (Babu Khan vs. State of U.P.) preferred by the co-accused Babu Khan, son of Habib Khan has been dismissed as abated vide order dated 20.12.2016 as the co-accused Babu Khan has died during pendency of the appeal.

4. In brief, the case of the prosecution is that on 13.9.2004 at about 2 PM the nephew of the informant, namely, Gaurav @ Monu (deceased) had some altercation with the appellant, Babloo Ghosi and co-accused, Babu Khan (now dead), son of Habib Khan and it was because of this enmity that on the same day at 7 PM, when his nephew along with Manjeet Yadav was going on victor motorcycle bearing registration No. UP 35D/9001 which was driven by Manjeet Yadav and the deceased was a pillion rider and in the other hero honda motorcycle bearing registration No. UP 78Y/2938 driven by the informant and Neeraj was the pillion rider when they reached in front of the house of Ram Jeevan, the accused who were present there had got the motorcycle of Manjeet Yadav fallen down by pushing it. Gaurav @ Monu had also fallen down. Immediately thereafter the appellant, Babloo Ghosi and co-accused Babu Khan (now dead) who were carrying firearms in their hands fired at the deceased. The incidence was seen by the informant and all persons who were on the motorcycles. There was sufficient light of the motorcycle and the light due to generator and inverter operating nearby. The accused-persons were duly seen and identified. On the shouting of the informant, the accused-persons ran-away showing their firearms. The informant and his accomplice took Gaurav @ Monu to the Regency Hospital, Kanpur where the doctor declared Gaurav @ Monu as brought dead. The corpus of the deceased was kept at the Government Hospital, Unnao and thereafter he had got the first information report lodged.

5. On the basis of first information report, a case was registered under Section 302/34 IPC and charge-sheet was submitted in the Court. The accused, Babloo Ghosi and Babu Khan (now dead) were apprehended on 16.9.2004. The police had recovered one each local made firearm along with one each live cartridge from the possession of the accused-persons.

6. After completing the requirement of Section 207 Code of Criminal Procedure, the case was committed to the Court of sessions. After hearing the accused and going through the evidence on record, charges were framed under Section 302 read with 34 IPC and 3/25 Arms Act separately. The accused persons denied the charge and requested for trial. Both the sessions trial were heard together and decided by the impugned judgment.

7. The prosecution in order to prove its case had examined PW-1 Dr. S.A. Rizvi