Advocates appeared :
For the Appellant : Ashok Kumar Jain
For the Respondent : R. K. Awasthi

JUDGMENT RAJEEV KUMAR SHRIVASTAVA, J. : – The instant Criminal Appeal is preferred under section 374 of Criminal Procedure Code, against the judgment of conviction and sentence dated 22-3-2010 passed by Third Additional Sessions Judge, Bhind, District Bhind in Sessions Trial No. 212/2009, whereby appellant No. 1-Jhabbu has been convicted under section 302 of INDIAN PENAL CODE and sentenced to undergo life imprisonment with fine of Rs. 500/-, in default of payment of fine, to undergo RI for three months, and under section 25/27 of ARMS ACT , to undergo RI for three years with fine of Rs. 500/-, in default of payment of fine, to undergo rigorous imprisonment of three months and appellant No. 2-Kamal and appellant No. 3-Babloo have been convicted under section 302 read with section 34 of INDIAN PENAL CODE and sentenced to undergo life imprisonment with fine of Rs. 500/- each, in default of payment of fine, to undergo RI for three months each respectively.

2. The prosecution case in short is that on 28-8-2008 at around 12.30 pm in front of hotel of Kallu Batham Jail Road Bhind when complainant Ajeem Khan his elder brother Chanda Khan were sitting in the hotel of Kallu Batham, their father Imam Khan @ Immy Musalman was returning back after meeting with his son Shahjad Khan, who is the elder brother of complainants. When their father Imam Khan reached in front of hotel of Kallu Batham, accused/appellants Ghambheer Singh @ Gambare Bhadoriya, Jhabbu Singh Bhadoriya, Ballu Bhadoriya and Kamal Singh Bhadoriya reached there, all were armed with mouser and confined their father Imam Khan to kill him. When their father tried to escape from the place, Gambheer Singh fired upon their father by mouser Katta which resulted injuries over the right side of waist of Imam Khan. Thereafter, Jhabbu Singh fired over the head of Imam Khan by means of mouser katta which resulted in death of Imam Khan. Chanda Khan, Mohd. Wasim etc. were the eyewitnesses to the incident. The accused/appellants committed the aforesaid offence considering the previous enmity was due to murder of elder brother of Gambheer Singh named Lallu Bhadoriya. FIR was lodged. Investigation was done. After completion of investigation charge-sheet was filed.

3. Appellants were tried for the offences under sections 302 of INDIAN PENAL CODE and section 25/27 of ARMS ACT and 302/34 of INDIAN PENAL CODE . The trial Court convicted and sentenced the appellants as under : –

Name of accused Section Punishment Fine In default, punishment Jhabbu Singh @ Murat Singh 302, INDIAN PENAL CODE Life Imprisonment 500/- 3 months Addl. RI 25/27 ARMS ACT Three years RI 500/- 3 months Addl. RI Babloo Singh 302/34 Life Imprisonment 500/- 3 months Addl. RI Kamal Singh 302/34 Life Imprisonment 500/- 3 months Addl. RI

4. The grounds raised are that the judgment of conviction and sentence is bad in law and against settled principles of law. There are various contradictions in prosecution evidence. The appellants have been falsely implicated in this case due to previous enmity. On the date of incident eyewitnesses were not present on the place of incident as they reside at Itawa and the incident took place at Bhind. Defence has produced the visiting register of jail wherein no such fact has been mentioned that on the date of incident deceased Imam Khan met his son Shahjad Khan in jail. The learned trial Court has erred in disbelieving the defence evidence. There was no motive of committing murder of the deceased. There are lots of variations in the statement of the prosecution witnesses. Hence, prayed for acquittal.

5. Per Contra, learned State Counsel opposed the submissions and submitted that the trial Court has rightly convicted the appellants and awarded sentence. Hence, no case is made out for interference.

6. Heard the learned counsel for the rival parties and perused the record.

7. In the present case, the following question emerges for consideration :

“(i) Whether, on 28-8-2008 at about 12.30 pm t