JUDGMENT

G.S. Ahluwalia, J. - By this common judgment, Cr.A. Nos.379 of 2012 and 401 of 2012 shall be decided.

2. Both the Criminal Appeals have been filed against the Judgment and Sentence dated 3-5-2012 passed by 2nd Additional Sessions Judge, Gwalior in S.T. No.340/2011 by which the Appellants have been convicted and sentenced for the following offences :

All sentences shall run concurrently.

3. It is not out of place to mention here that Appellant Suresh Chandra Pathak has died during the pendency of the appeal, therefore, by order dated 20th-July-2022, Appeal filed by Suresh Chandra Pathak has been dismissed as abated.

4. The necessary facts for disposal of present appeal in short are that on 16-4-2011, at about 14:15, the complainant Mukesh Chandra Pathak lodged an FIR, alleging that under the orders of the Civil Court, demarcation proceedings were being carried out by the Court Commissioner. Some excessive part of property was found in possession of Suresh Chandra Pathak and therefore, he got annoyed and called his son Pawan and Khemraj by his son Banti. Pawan came on the spot along with licensed mouzer of Suresh Chandra Pathak and Khemraj came along with .12 bore Katta. Suresh Chandra exhorted to kill and accordingly, Pawan fired a gunshot causing injury on the chest of father of complainant, as a result, he fell down. Another gunshot was fired, but it missed. Khemu also fired two gunshots. Since the complainant bent down, therefore, he narrowly escaped. Rakesh and Shailesh Sharma were also with him, who have seen the incident, whereas the complainant ran towards the back side in order to save his life. Rakesh and Brijmohan took his father to Sahara Hospital, but his father has expired on the way and he has been declared dead. He has come to police station after sending the dead body to mortuary for Post-mortem.

5. On this report, the police registered the offence. The post-mortem of the dead body was got done. The Appellants were arrested. Both the firearms were seized. Spot map was prepared. The statements of witnesses were recorded. Police after completing the investigation, filed charge sheet for offence under Sections 30 2, 307, 34, 201 of IPC and under Section 30 of ARMS ACT .

6. The Trial Court framed charge under Section 30 2/34 of IPC against Banti @ Nogendra, under Section 30 2/34, 307 of IPC and under Section 30 of ARMS ACT against Khemraj @ Khemu, and under Sections 30 2, 201 of IPC and under Section 30 of ARMS ACT against Pawan Pathak.

7. The Appellants abjured their guilt and pleaded not guilty.

8. The prosecution examined Mukesh Pathak (P.W.1), Shailesh Sharma (P.W.2), Rakesh Pathak (P.W.3), Rishabh Pathak (P.W.4), Dharamvir Singh (P.W.5), Megh Singh Yadav (P.W.6), Surendra Singh (P.W.7), Anand Kumar Yadav (P.W.8), Sughar Singh (P.W.9), Ratiram Singh Chokoriya (P.W.10), Dashrath Singh (P.W.11), Hariom Sharma (P.W.12), P.S.Tomar (P.W.13) and Dr. Heeralal Manjhi (P.W.14).

9. The Appellants did not examine any witness in their defence.

10. The Trial Court by the impugned judgment has convicted and sentenced the Appellants fo