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A.F.R

Court No. - 44

Case :- CRIMINAL APPEAL No. - 6384 of 2009

Appellant :- 1. Umesh Mahto and 2. Krishna Mahto

Respondent :- State of U.P.

Counsel for Appellant :- Mahesh Prasad Yadav

Counsel for Respondent :- Govt. Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Justice Nalin Kumar Srivastava)

1.

This criminal appeal is directed against the judgement and

order dated 07.10.2009 passed by Special Judge (E.C. Act),

Gorakhpur in Session Trial No. 270 of 2000 arising out of Case

Crime No. 126 of 2002, P.S.-Sahpur, District- Gorakhpur

convicting and sentencing the appellants under Section 302/34

I.P.C. to undergo life imprisonment further imposing fine of Rs.

10,000/- each and in default of payment of fine to undergo one

year rigorous imprisonment and under Section 307/34 I.P.C. to

undergo seven years rigorous imprisonment and fine of Rs.5,000/-

each and in default of payment of fine to undergo six months

rigorous imprisonment.

2.

The prosecution story unfolds with an FIR lodged at P.S.

Shahpur, District- Gorakhpur on the basis of written report given

on 22.03.2002 at 19 p.m. by Muneshwar Mahto, S/o Sipahi

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Mehto, brother of the deceased. It was narrated in the written

report by the informant that he as well as his brothers Suraj Mehto

and Rameshwar Mehto work as sales men in the bakery. The

accused persons Umesh Mehto and Krishna Mehto, who happen to

be their relatives have been on inimical terms on account of some

land disputes and litigation. On 22.03.2002 at about 5:30 pm when

he and his brother Suraj Mehto were coming to the city Gorakhpur

from Pipraich after finishing their duty, the accused persons

Umesh Mehto and Krishna Mehto chased them by motor cycle and

surrounded both of them in front of the farm of Jitendra Jaiswal

near Padri Bazar Kasba. Both the accused persons got down from

the motor cycle and opened fire with country made pistols upon

the informant and his brother Suraj Mehto. When they rushed from

the spot to save themselves, the accused persons fired upon his

brother Suraj Mehto who fell down in the wheat field and died.

The accused persons fled away on motorcycle. The informant

Muneshwar Mehto and the people nearby witnessed the

occurrence. On the basis of the written report Exhibit A-1 given by

the informant Muneshwar Mehto, Chik FIR Exhibit A-4 was

prepared by Cons.Moharrir Saroj Kumar on 22.3.2002 at 19 pm

and its entry was made in the G.D. rapat number 37, Exhibit A-5 at

the same time.

3.

The investigation was started and the inquest report Exhibit

A-2 was prepared on 23.03.2002, the papers required for post

mortem Exhibit A-7 to A-11 were also prepared and the autopsy of

the dead body of the deceased was performed by doctor V.K.

Dubey on 23.3.2002 who prepared the autopsy report Exhibit A-3

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and found the following anti mortem injuries on the body of the

deceased.

(i) fire arm wound of entry 1 cm x 1 cm x cavity deep

on right side chest 5 cm lateral to right nipple margin

inverted, blackening and charring present in an area

14 cm x 7 cm

(ii) fire arm wound of exit 1.5 cm x 1.5 cm on left

side chest 5 cm. Below to left nipple margins everted.

(iii) fire arm wound of entry ¾ cm x ½ cm on medial

side of right upper arms in. Middle margin inverted.

(iv) fire arm wound of exit 1 cm x 1 cm on lateral side

of right upper arm in middle, margins inverted.

Internal Examination

Right and left pleura were found punctured. Both lungs were

also punctured. Clotted blood about 1-1/2 litre was found present

in thoracic cavity, eyes and mouth closed, rigor mortis present on

both limbs.

Cause of death in his opinion was haemorrhage and shock

due to anti mortem injuries.

4.

The I.O. recorded the statement of the witnesses of fact and

formal witnesses, prepared map Exhibit A-13 after spot inspection

and after completing the investigation charge sheet Exhibit A-6

was submitted to the Court.

5.

The case of the accused pers