JUDGMENT :

Pritinker Diwaker, J.

1. Heard Shri Yogesh Srivastava for appellant Nos. 2, 3 & 4, Shri Manu Sharma, Amicus, for appellant No.1 and Shri J.K. Upadhyay, learned AGA for the State.

2. This appeal arises out of the impugned judgment and order dated 26.03.2009 passed by Special Judge (D.A.A.), Agra in S.T. No. 85 of 2002 (State Vs. Sanjoo @ Sanjay & others) arising out of Crime No. 78 of 2002, under Sections 394, 302, 411, 120-B, I.P.C, and Sessions Trial No. 97 of 2002, arising out of Crime Nos. 84 and 85 of 2002 under Sections 25 and 25/4 Arms Act, Police Station-New Agra, District Agra, convicting appellants Sanjay @ Sanjoo, Praveen Dubey, Banwari and Lala @ Kishan and sentencing them to undergo seven years rigorous imprisonment for the offence u/s 394 with a fine of Rs.5,000/-(each), in default thereof, to undergo additional simple imprisonment for one year; to undergo imprisonment of life for the offence under Section 302/34 of IPC with a fine of Rs.20,000/-(each), in default thereof, to undergo two years additional simple imprisonment; to undergo imprisonment of life for the offence under Section 120-B of IPC with a fine of Rs.10,000/-(each), in default thereof, to undergo one year simple imprisonment; convicting appellants Sanjay @ Sanjoo, Praveen Dubey and Banwari and sentencing them to undergo two years rigorous imprisonment for the offence under Section 411 of IPC; convicting appellant Sanjay @ Sanjoo and sentencing him to undergo two years rigorous imprisonment for the offence under Section 25 Arms Act with a fine of Rs.5,000/-in default thereof to undergo one year additional simple imprisonment; and convicting appellants Pradeep Dubey and Banwari and sentencing them to undergo one year rigorous imprisonment for the offence under Section 25/4 with a fine of Rs.2,000/-(each), in default thereof to undergo six months additional simple imprisonment; and it was directed that all the sentences shall run concurrently.

3. In the present case, name of the deceased is Sanjay, who died after sustaining one gun shot injury on his temporal region. On 21.01.2002 at 8.55 pm, on the basis of written report Ex.Ka-1, FIR Ex.Ka-26 was registered against unknown persons under Section 302 of I.P.C.

4. Inquest on the dead body was conducted on 21.01.2002, vide Ex.Ka-2, and the body was sent for postmortem, which was conducted on the second day, i.e. on 22.01.2002, vide Ex.Ka-3, by P.W.2. As per post mortem report, one gun shot injury was found on the temporal region of the deceased and the cause of death was shock and hemorrhage as a result of ante mortem injury.

5. While framing charge, trial Judge has framed charge against the accused-persons under Sections 394, 302, 411, 120-B, I.P.C; whereas separate charge under Section 25 and 25/4 of Arms Act has also been framed against accused appellants, Sanjay @ Sanju, Praveen Dubey and Banwari.

6. So as to hold accused appellants guilty, prosecution has examined eleven witnesses. Statement of the accused-appellants were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.

7. By the impugned judgment and order, the trial Judge has convicted and awarded the sentence, as mentioned in paragraph-2 of this judgment.

8. Counsel for the appellants submits:

(i) that there is no eye-witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence.

(ii) that the main piece of evidence against the appellants are statements of P.W.3 Punit Kumar Gautam and P.W.4 Hariom Gautam, who allegedly saw the appellants coming out from the house of the deceased. Even assuming that the accused persons had visited the house of the deceased, it could be because of some business transaction or for some other reasons.

(iii) that motive has not been proved by the prosecution.

(iv) that the circumstantial evidence collected by the prosecution is not conclusive and considering the law laid down by the Apex Court and this Court,