JUDGMENT :

MOHD. ASLAM, J.

1. Heard Sri Arun Sinha, learned counsel for the appellant, Sri Vijay Kishor Mishra, learned counsel for the complainant and Smt. Smiti Sahay, learned Additional Government Advocate for the State/respondent.

2. This criminal appeal has been filed under Section 374(2) Cr.P.C. by the appellant/convict Amitabh Dixit against the impugned common judgment of conviction and order of sentence dated 16.12.2004 passed by Additional District and Sessions Judge, Fast Track Court No. 4, Hardoi in Sessions Trial No. 673 of 2003 (State vs. Amitabh Dixit), arising out of Case Crime No. 209 of 2003, under Sections 302/307 I.P.C. Police Station Shahabad, District-Hardoi and Session Trial No. 674 of 2003 (State vs. Amitabh Dixit), arising out of Case Crime No. 266 of 2003, under Section 25 Arms Act, Police Station-Shahabad, District Hardoi, whereby the appellant was convicted for offence punishable under Section 302 I.P.C. and Section 25 Arms Act and was sentenced to undergo imprisonment for life along with fine of Rs. 5000/- under Section 302 I.P.C. and further to undergo rigorous imprisonment for two years along with fine of Rs. 500/- under Section 25 of Arms Act, in default of payment of fine, to undergo additional simple imprisonment for two years. All sentences were directed to run concurrently.

3. The brief facts necessary for disposal of this appeal are that the informant Kamal Kishore Dixit (PW-1) son of Late Moonga Ram Dixit, resident of Mohalla Budh Bazar, Police Station Shahabad, Hardoi lodged the FIR in Case Crime No. 209 of 2003, under Sections 307, 302 I.P.C. on the basis of written Tahrir (Ex.Ka-1) on 25.5.2003 at 15:20 hrs. at Police Station-Shahabad, District Hardoi alleging therein that on 25.5.2003 at 02:45 hrs. his younger brother, Ram Kishore Dixit was returning home by bicycle after getting mustard oil extracted. The informant Kamal Kishore and his another brother Ram Pramod were also coming to home and they were 50 yards behind his brother Ram Kishore. When his brother Ram Kishore Dixit reached near the Mill of Parashuram near Mohallah Budh Bazar, accused Amitabh Dixit, son of Om Parkash Dixit, who was having enmity regarding the division of land property, opened fire at his brother Ram Kishore Dixit by a country made pistol with intention to kill him. His brother Ram Kishore Dixit left his bicycle and ran towards them to save his life. Meanwhile, Amitabh Dixit fired another shot, till then his brother reached at the door of Ram Shankar Mishra. After chasing, Amitabh Dixit fired another shot by which his brother sustained injury. Witnesses Ramji Tiwari, son of Govind Prasad Tiwari, resident of Mohallah Holi Kalan town and Suresh Kumar Gupta, son of late Raghuwar Prasad Gupta who were passing by the place of incident witnessed the entire incident. On account of continuous firing by Amitabh Dixit on public road, the people around there were horrified. Ladies, gents and children entered into the house and locked their doors, by which the normal life near the place of occurrence, got disturbed, taking advantage of which accused fled from there. With the help of Ramji Tiwari and Suresh Kumar Gupta his injured brother Ram Kishore Dixit was taken to the Government Hospital Shahabad and informant went to the police station to lodge the F.I.R.

4. Head Moharrir, scribed the Chik Report No. 71 of 2003 (Ex.Ka-5) under Section 307 I.P.C. at Police Station Shahabad on the basis of written Tahrir of informant and registered the Case Crime No. 209 of 2003, under Section 307 I.P.C. by making necessary entry in GD report no. 26 at 15:20 hrs. on 25.05.2003 (Ex.Ka-6) and investigation of the case was taken by SHO Shahabad, Inspector S.N. Singh PW-7. On 25.05.2003, he copied the Chik report in CD and recorded the statement of injured Ram Kishor Dixit under Section 161 Cr.P.C. (Ex.Ka-25), thereafter, he searched for the accused, but could not find him.

5. On the same day i.e. 25.05.2003 at 16:20 p.m. informant gave another