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:-

Conviction U/s

Sentence

Fine

Default (in lieu of

fine)

302 of IPC

Life

Imprisonment

Rs.5,000/-

3 months SI

25(1)(1-B)(a)

of Arms Act

1 year

Rs.1,000/-

1 month SI

27 of Arms Act

3 years RI

Rs.1,000/-

1 month SI

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

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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.

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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.

Challenging the judgment and sentence passed by the Court below,

it is submitted by the counsel for the appellant that there is nothing on

record to show that there was suffici