Point of law : It is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony

JUDGMENT :

MANOJ MISRA, J

1. This appeal is against judgment and order of conviction and sentence, dated 23.02.2010 and 24.02.2010, respectively, passed by the Additional Sessions Judge, Court No.5, Azamgarh in connected Sessions Trial Nos. 618 of 2002 and 619 of 2002 whereby, both the appellants, namely, Ram Shanker and Rajesh Pandey, have been convicted under Section 302/34 I.P.C. in Sessions Trial No.618 of 2002; and in Sessions Trial No.619 of 2002 the appellant Rajesh Pandey has also been convicted under Section 25 Arms Act. For their conviction under section 302/34 IPC both the appellants have been sentenced to imprisonment for life with fine of Rs. 5,000/-each and a default sentence of six months R.I.; whereas, for his conviction under section 25 Arms Act, the appellant Rajesh Pandey has been sentenced to one year R.I. with fine of Rs.1,000/-and a default sentence of one month. However, in Sessions Trial No. 618 of 2002, both the appellants were acquitted of the charge of offence punishable under Section 504/34 I.P.C.

INTRODUCTORY FACTS

2. The prosecution story, in brief, as could be elicited from the written report (Exb. Ka-1) lodged by PW-1, is that the deceased-Munnar Mali (informant’s father), had a long standing civil litigation with Ramjeet Pandey (the father of accused Rajesh), giving rise to strong enmity between them. Prior to the incident, on 05.08.2002, in the evening, at about 4 pm, while the deceased was working at the door of his house, Ramjeet, his son Rajesh and Onkar, came, abused and tried to assault informant's father, however, informant's father managed to escape and hide himself in the house. Thereafter, on 07.08.2002, at about 7.15 am, when the informant (PW-1) and his father (the deceased) were returning from Budhanpur Bazaar, after purchasing betel leaves, near Amari village, Rama Shankar son of Kamla Prasad (appellant no.1), Onkar son of Rama Shankar (non-appellant), and Rajesh son of Ramjeet (appellant no.2) came on a motorcycle from behind and, by exhorting each other, fired three shots at the deceased, as a result whereof, the deceased fell on the road and died and his blood, stained informant's shirt. In the FIR it is also alleged that the accused had threatened and chased the informant, who escaped to the adjoining village Amari to hide himself, whereas the accused while threatening the witnesses and brandishing their weapons escaped on their motorcycle, via Bhatti Chatti towards Atrait, and were spotted, inter alia, by Sherai (PW-2) and Gulab Seth (not examined), who all had witnessed the incident. It is also alleged that seeing the entire incident, people in the area were terrified and public order was breached. By stating all that has been narrated above and claiming that informant’s father’s body and cycle is lying at the spot, written report (Exb. Ka-1) was given at P.S. Atrauliya, District Azamgarh, which was registered as Case Crime No. 257 of 2002, on 07.08.2002, at 8.30 hours, of which Chik FIR (Exb. Ka-3) was prepared by PW-4, vide GD entry no. 15 (Exb. Ka-4).

3. Inquest was conducted at the spot on 07.08.2002 at 10.30 hours of which inquest report (Exb. Ka-7) was prepared by S.I. Lallan Mishra (not examined), which was proved by I.O. (PW-6). PW-1 (Rajaram-informant) and PW-2 (Sherai), inter alia, were witnesses of the inquest. The condition in which the body was noticed at the time of inquest is reported as follows:-

^^n'kk 'ko & 'ko e`rd eqUuj ekyh cwढuiqj & HkVgbZ iDdh lMd ij vekjh xkao ds lkeus nkfgus djoV vkSa/kh iMh gS] nksuks iSj nf{k.k flj mRrj] psgjk if'pe] nkfguk gkFk nkfguh rjQ nch cka;k gkFk mij ck;h rjQ nkfguh lh/kh] vka[k] eqag v/k [kqykA lkbfdy e`rds ds uhps nch] ftles vkxs >ksyk yVdk] ihNs iku dh Vksdjh ca/khA

diMk& e`rd ds cnu ij diMk /kksrh] yaxksV] caMh] dqrkZA

pksV & e`rd eqUuj ekyh ds 'ko dks myV iyV dj ns[kk x;k rks blds cnu ij fuEufyf[kr pksVs ikbZ x;hA^^

4. Autopsy was conducted on 07.08.2002, at about 4.15 pm., by Dr. Nand Lal Yadav -PW-3, who prepared autopsy re