JUDGMENT

G.S. Ahluwalia, J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 1-6-2012 passed by 1st Additional Sessions Judge, Dabra, Distt. Gwalior in S.T. No.326/2008 by which the Appellant has been convicted and sentenced for following offences :

Both the sentences shall run concurrently.

2. According to the prosecution case, the complainant Omprakash lodged a Dehati Nalishi in J.A. Hospital, Gwalior, that he is running a hotel in the name and style Laziz Tiffin Center. Anand Rai who is the brother-in-law of his brother works in his hotel. At about 4 P.M., the appellant had come to his hotel and demanded for water. As there was some delay in serving water, therefore, the appellant slapped Anand Rai.

At that time, the complainant had gone to Gwalior. When he came back at about 7 P.M., the entire incident was narrated by Anand Rai. When appellant came there, then the complainant enquired from him as to why he had slapped Anand Rai. On this query, the complainant was also slapped by the Appellant. The neighborers also came there and pacified the situation. Thereafter, at about 8 P.M., the Appellant along with 3-4 persons came to the hotel. The complainant was standing outside the hotel. Anand Rai was preparing chapatis. The Appellant and his companion went inside the hotel and Appellant shot Anand Rai causing gunshot injury in the abdominal region. The Appellant ran away from the spot along with his companions. The injured Anand Rai was brought by him to hospital along with Ranjeet and Sonu Sharma, where he has been declared dead by the Doctors.

3. On the basis of Dehati Nalishi, F.I.R. was lodged. Safina Form was issued and Lash Panchnama was prepared. Requisition for post-mortem was prepared and dead body was sent for post-mortem. The spot map was prepared. Blood stained and plain earth were seized. The Appellant was arrested and on his memorandum, one Katta was seized. The seized articles were sent to F.S.L. Sagar. The F.S.L. report was obtained.

Sanction for prosecution under Section 27 of ARMS ACT was obtained.

After completing the investigation, police filed charge sheet against the Appellant for offence under Section 302 , 34 of IPC and under Sections 25 and 27 of ARMS ACT . Investigation was kept pending against companions of the Appellant.

4. The Trial Court by order dated 5-12-2008 framed charges under Section 3 02 of IPC and under Section 25 (1-B) A read with Sections 3 and 27 of ARMS ACT .

5. The Appellant abjured his guilt and pleaded not guilty.

6. The prosecution examined Sonu Sharma (P.W.1), Arvind Singh (P.W.2), Rambabu (P.W.3), Kaptan Singh (P.W.4), Omprakash Shivhare (P.W.5), Sundarlal Shivhare (P.W.6), Raghuvir Singh (P.W.7), Pyarelal (P.W.8), Ravi Rai (P.W.9), Dr. J.N. Soni (P.W. 10), Basudev Sharma (P.W.11), Ramvaran Sharma (P.W.12), J.B.S. Chauhan (P.W.13), and R.K. Jain (P.W.14).

7. The Appellant examined Neeraj Yadav (D.W.1) and Harnam Singh (D.W.2).

8. The Trial Court by the impugned order has convicted and sentenced the appellant for the above mentioned offences.

9. Challenging the judgment of conviction passed by the Trial Court, it is submitted by the Counsel for the Appellant that Omprakash Shivhare (P.W.5) is not a reliable witness. He has not been corroborated by other eye-witnesses. .12 bore katta was not seized from the possession of the Appellant. No independent witness was examined. The prosecution could not prove any motive on the part of the Appellant. The medical evidence does not corroborate the medical evidence. No gunshot hole was found on the shirt of the Appellant. Furthermore, the Appellant is in jail for the last more than 14 years.

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