These appeals filed under Section 374(2) of Criminal Procedure

Code take exception to the judgment dated 29.10.2011 passed in

Sessions Case No.151/2011 by learned Sessions Judge, Bhopal

whereby both the appellants were convicted and sentenced by the trial

Court as under -

Sl.

No.

Convicted under Sections

Sentenced to undergo

1.

302 of the IPC in alternative

302 read with 34 of the IPC

(each)

Life imprisonment with fine of

Rs.1000/- and in default, to

undergo R.I. for two months (each)

2.

25(1-B) of the Arms Act

(each)

R.I. for one year with fine of

Rs.1000/- and in default, to

undergo R.I. for two months (each)

3.

27 of the Arms Act (each)

R.I. for one year with fine of

Rs.1000/- and in default, to

undergo R.I. for two months (each)

With the direction that all the sentences shall run concurrently

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2.

The prosecution story in short is that complainant Ahmed

Hussain (PW-1) got an information from Raees (PW-2) on 09.12.2010

that his son Altaf @ Cheeku was assaulted by appellants Rinku @

Azharuddin and Ankur Rajak by means of swords. Altaf was taken to

Katju Hospital in a 108 Ambulance. Upon receiving the said

information, complainant Ahmed Hussain reached Katju Hospital

where he received the information about the death of his son. He found

various injuries on the person of Altaf. He received information upon

inquiry that before the incident, appellants blamed Altaf regarding

stealing some material of sister of Ankur Rajak. Thus, a quarrel took

place between them and they were having enmity towards Altaf @

Cheeku.

3.

As per the information given by Ahmed Hussain (PW-1), a

report in Police Station-T.T. Nagar was registered at 44/2010 and

thereafter FIR No.1091/2010 under Section 302/34 of IPC was

registered. During the course of investigation, the Investigating Officer

visited the scene of crime and a spot map was prepared. The

incriminating materials were collected from the place of incident.

Statement of witnesses under Section 161 of the Cr.P.C. were recorded.

The appellants were arrested and swords were recovered from them.

The seized materials in sealed condition were sent for examination to

Forensic Science Laboratory – Sagar (FSL-Sagar). After the

investigation, Challan was filed. Appellants abjured the guilt. Sister of

Ankur Rajak i.e. Pooja (DW-1) entered the witness box as a solitary

witness. The Court below framed four questions for its determination

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and thereafter recorded the statements of fifteen prosecution witnesses

and one defence witness. After hearing the parties, the impugned

judgment was passed and appellants were convicted and directed to

undergo sentence as mentioned hereinabove.

Cr.A. No.2750/2011

Contention of Appellant :

4.

Shri Siddharth Datt, learned counsel or the appellant- Ankur

submits that as per prosecution story, there is only one eye witness to

the incident, i.e. Sheikh Raees (PW-2). Learned counsel for the

appellant – Ankur submits that on the basis of information received,

the prosecution prepared a site map (Ex.P-2). By taking this Court to

the site map, it is submitted that Sheikh Raees (PW-2) has signed the

site map in the capacity of a witness. However, a plain glance of site

map shows that the position from where incident has been witnessed

by Sheikh Raees (PW-2) is not shown in the site map. In other words,

it is argued that site map does not throw any light regarding presence

of Sheikh Raees (PW-2) at the scene of crime. Thus, his presence itself

at the scene of crime is doubtful and it is difficult to believe that he

was an eye-witness.

5.

The incident had taken place on 9.12.2010 whereas FIR was

belatedly recorded on 10.12.2010 at the instance of Ahmed Hussain

(PW-1). The statement of Sheikh Raees (PW-2) was relied upon

wherein he deposed that he on his own did not go to the Police Station.

He went to the Police Station only when he was called by the Police

Authorities. Learned counsel for the appellant -Ankur submits that the

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statement of Sheikh Ra