JUDGMENT

G.S. Ahluwalia, J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 17/11/2011 passed by Sessions Judge, Datia in Sessions Trial No.87/2011, thereby convicting the appellant for the following offences:-

All the sentences shall run concurrently.

2. The necessary facts for disposal of the present appeal in short are that on 25/3/2011, at about 11:15 in the night, the complainant Shyam Kumar Tiwari, his younger brother Rammohan Tiwari (deceased), Laxman Purohit and Balveer Thakur were returning back from the house of their relative Anand Belpatri. As soon as they passed in front of Supermarket and came near the shop of Manoj Sen, it is alleged that Manoj Sen was standing there alongwith two unknown persons. After looking at the deceased Rammohan Tiwari, the appellant-Manoj Sen took out a .315 bore country made pistol and fired a gunshot hitting on the chest of deceased Rammohan Tiwari, as a result, he fell down. The unknown person also took out a country made pistol and threatened that in case if anybody dares to come forward, then he too will be killed and thereafter, all the three accused persons ran away towards Talaiya Mohalla. The incident was witnessed by Laxman Purohit, Balveer Thakur, Sangram Singh etc. The complainant Shyam Kumar Tiwari found that Rammohan Tiwari had already died. It was alleged that some money dispute was going on between the deceased and the appellant-Manoj Sen. The appellant-Manoj Sen was to refund Rs.30,000/- to the deceased Ram Mohan Tiwari and only on this issue, the appellant killed Ram Mohan Tiwari by shooting him down. The complainant Shyam Kumar Tiwari after leaving his companions on the place of incident, immediately rushed to the police station Kotwali and lodged FIR at 11:25 in the night. The offence was registered and the Investigating Officer Satish Dubey reached on the spot at 11:55 and prepared the spot map. Safina form was issued and Lash Panchnama was prepared. A requisition for postmortem was sent to Civil Hospital Datia. The blood stained and plain earth was seized. The postmortem report was given and the bullet which was found stuck in the thoracolumbar vertebra was taken out as well as the blood stained t-shirt and banyan of the deceased were sealed and handed over to the police constable. The statements of the witnesses were recorded.

On 28/3/2011, Manoj Sen was arrested. A country made pistol as well as a fired cartridge and one more live round were seized from the possession of the appellant. The country made pistol and cartridge were examined by the Armourer. Permission to prosecute the appellant under Arms Act was obtained. The ballistic as well as FSL report were obtained. A copy of the FIR was sent to the Court, Datia and after completing the investigation, police filed the charge-sheet for offence under Sections 302/34 of IPC and Section 25/27 of the Arms Act.

3. It is not out of place to mention here that remaining two unknown persons could not be traced and the charge-sheet was filed against the appellant only.

4. On 28/7/2011 the Trial Court framed charges under Section 302 of IPC and under Sections 25()1(1-B)(a) and 27 of the Arms Act.

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

6. The prosecution examined Sonilal (PW-1), Dr. Pradeep Upadhyay (PW-2), Tirisuyas Lakda (PW-3), Vinod Bansal (PW-4), Hotam Singh (PW-5), Shyam Kumar (PW-6), Sangram Singh (PW-7) and Satish Dubey (PW-8).

7. The appellant did not examine any witness in his defence.

8. The Trial Court by the impugned judgment and sentence has convicted the appellant for the above-mentioned offence.

9. Challengi