JUDGMENT :

Umesh Chandra Sharma, J.

1. These two appeals have been preferred against the judgment and order dated 2.3.2005 passed by Additional Sessions Judge Court No.5, Allahabad, in S.T. No. 807 of 2000 State Vs. Shyam Bihari Mishra and Others, under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Police Station Sarai Inayat, District- Allahabad, convicting and sentencing the appellants under Section 302 read with Section 34 IPC for life imprisonment and under Section 307 read with Section 34 IPC for 3 years rigorous imprisonment. Both sentences were directed to run concurrently.

2. In brief, the facts of the case are that informant Shiv Prakash Tiwari r/o Kotwa, police station- Sarai Inayat, Allahabad presented a tehrir Ex. Ka-1 on 10.4.2000 at 9:30 a.m. stating therein that today at about 8:30 am, his brother Jai Prakash Tiwari was returning after worshiping at Goddess Maa Endree Devi Temple with nephew (Bhanja) Kuldeep Mishra on a scooter when he reached near his house, he slowed down his scooter due to drain, Shyam Bihari Mishra exhorted to kill him, his son Bimal Kumar Mishra stopped his scooter from the front and Kamal Mishra, placed a country made fire-arm on the chest of his brother Jai Prakash and fired. Hearing the sound of the fire he, Pawan Tiwari and Jai Hind reached the spot and saw the occurrence and chased the accused persons. In the meantime, Vimal Kumar Mishra with the intention to kill him also fired at him (confront). He ducked behind a pile of new bricks. Therefore, the bullet did not hit him. According to the informant there was old land enmity between the parties. His brother Jai Prakash is in a serious condition, he requested to lodge the F.I.R.

3. On the basis of Tehrir Ex. Ka-1, Chick F.I.R. Ex. Ka-8 was prepared. P.W.6 S.O. Kripa Shankar Dixit started investigation. He reached on the spot and took sample of blood stained and plain soil and prepared recovery memo Ex. Ka-4 and spot map Ex. Ka-4. He searched the house of accused persons and prepared recovery memo Ex. Ka-5. The injured Jai Prakash Tiwari was first of all taken to the police station wherefrom he was sent to Swaroop Rani Nehru Hospital, Allahabad, where he was declared brought dead. There, Chauki Incharge Kotwali, Sant Kumar Chaturvedi prepared inquest report and body was sent for post-mortem to Mortuary on 11.4.2000 at 2:00 p.m. where Dr. K.N. Joshi conducted the autopsy. On 20.4.2000 after getting information about the basement in the house of the accused persons the I.O. visited and searched the house of the accused persons but nothing incriminating was recovered.

4. On 28.4.2000, alleged weapon used in commission of crime was recovered upon the pointing of accused persons from their house containing one country made fire arm of 303 bore, two live cartridges of 303 bore and 12 bombs of which recovery memo Ex. Ka 5 was prepared.

5. After investigation, charge-sheet was submitted under Section 302, 307 and 504 /34 of IPC. The case was committed to the Court of Sessions and thereafter it was transferred to the Court of Additional Sessions Judge, Court No.6, Allahabad, who framed the charges under Section 302/34 and 307/34 IPC. Accused persons denied the charges and sought trial.

6. Prosecution examined following witnesses to prove the charges

Documentary evidence :