JUDGMENT :

VIJAY KUMAR SHUKLA, J. :—

The present appeal is filed under section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment of conviction and sentence by 2nd Additional Sessions Judge, Dhar dated 7-3-2011 in Sessions Trial No. 111/2010 whereby the appellant has been convicted under section 302 of the Indian Penal Code (hereinafter referred to as “IPC”) on two counts and sentenced for life imprisonment and to pay a fine of Rs. 1000/-in default to further undergo six months RI for the murder of Rafique @ Rashid. He has also sentenced for life imprisonment and to pay a fine of Rs. 1000/-, in default to further undergo 6 months RI for the murder of Ahsan. He has also convicted under section 27 of the Arms Act and sentenced to RI for 3 years and to pay a fine of Rs. 1000/-, in default to further undergo 6 months RI.

2. The prosecution case in brief is that before 2 days back of the date of the incident i.e. 10-12-2009, the appellant/accused Azad and his second wife Pappi @ Rehana had quarrelled with Memuna, first wife of the appellant Azad (P.W.1) and had beaten her in village Baloda. Because of the said Marpit with her on 10-12-2009, Memuna telephoned her brother Ahsan and asked him to come. Ahsan came to the house of accused Azad along with his cousin brother Rashid. At 3 PM when they were talking with the appellant Azad, then suddenly accused Azad got angry and rebuked Ahsan and said why he was taking the side of his sister and slapped him. When Rashid tried to intervene, the appellant also had beaten him. It is alleged that Pappi @ Rehana brought a 12 bore gun from inside the house and gave it to the appellant and asked him to kill both of them. The appellant fired one bullet on the head of Ahsan and second bullet hit his right shoulder. One bullet also hit mandible of Rashid. Ahsan died on the spot. Upon the report of Memuna, Police Sadalpur registered the offences under section 302, 307 and 34 of Indian Penal Code and under section 25 of Arms Act in Crime No. 310/2009 against the appellant and co-accused Pappi @ Rehana. During the course of treatment, Rafique @ Rashid also died on 11-12-2009. The police, Sadalpur arrested the appellant and co-accused Pappi @ Rehana and after investigation filed the charge-sheet in the Court. The appellant and co-accused Pappi @ Rehana abjured their guilt. The learned trial Court after the trial acquitted the co-accused Pappi @ Rehana, but convicted and sentenced the appellant as above.

3. On the report of Memuna, a report was registered at Police Station – Sadalpur vide Ex.P/1 by P.W.8 Devendra Singh Sengar, Thana In-charge, Sadalpur. The post-mortem of both the dead bodies was carried out on 11-12-2009 by Dr. Narendra Pavaiya (PW-7). He opined that the deceased Rafique @ Rashid died due to neuro-haemorrhagic wound caused by gun injury within 24 hours. The said death was homicidal in nature. The post-mortem report is Ex.P/14. Regarding the death of Ahsan, his post-mortem report is Ex.P/15. It was opined that he died due to neuro-haemorrhagic shock caused due to gun injury on heads and the said injury was caused within 24 hours of the examination. Devendra Singh Sengar (PW-8) prepared Naksha Panchnama of dead body Ex.P/17 and Ex.P/18 is Naksha Mauka. From the spot, the blood-stained clothes, soil, one empty 12 bore cartridge and other 12 cartridges, pallets, plastic pieces and paper weight etc were seized by seizure memo Ex.P/11. The appellant and the other co-accused were arrested. On the disclosure statement of appellant, motorcycle was seized vide Ex.P/1 and on his statement, one 12 bore gun and cartridges were seized vide Ex.P/7. His gun licence was seized vide Ex.P/10. All the seized articles were sent to FSL Sagar. The FSL report is Ex.P/22 and the other reports are Ex.P/23 and P/24. The prosecution case is based on testimony of eyewitnesses, seizure of gun and FSL report. PW-1 Memuna, who is wife of appellant, deposed that the appellant had brought her after perf