J U D G M E N T

(Passed on 05/10/2021)

Per Rajeev Kumar Shrivastava, J.:

The instant Criminal Appeal is preferred under Section

374 of CrPC, against the judgment of conviction and sentence dated 28.02.2007 passed by Sixth Additional Sessions Judge, Gwalior in Sessions Trial No. 34/2005, whereby accused/appellants have been convicted under Sections 302 read with Section 34 of IPC, and Section 307 read with Section 34 of IPC, and Section 27 of Arms Act and sentenced to undergo life imprisonment with fine of Rs.20,000/- each for the offence under Section 302 read with Section 34 of IPC, in default of payment of fine, to undergo additional RI for 3-3 years, and for the offence under Section 307 read with 34 of IPC, to undergo 7-7 years RI with fine of Rs.5000/- each, in default of payment of fine, to undergo 3-3 months rigorous imprisonment, and under Section 27 of Arms Act, to undergo 3-3 years RI with fine of Rs.1000/- each, in default of payment of fine, to undergo rigorous imprisonment of 1-1 month. All the sentences were directed to run concurrently.

2. Prosecution story, in short, is that on 08.04.2004 at around 2.00 PM complainant Vinod Tomar had lodged oral report at Hazira Chowki. He had stated in the FIR that he was going by his motorcycle No.M.P.0-7-KD0-2867 to Lashkar. Teetu @ Rajeev (PW/4) was sitting on the back seat of his motorcycle. By another motorcycle Vinod Rana and Pintu were coming behind them from Tansen Road. Ahead of them his brother Sanjay Tomar, Balli @ Manoj Rana were going by their Splendor motorcycle. When Balli Rana and Sanjay Tomar reached near Life Insurance Corporation office, all of a sudden, Monu Chouhan and Tinku Tomar reached there by their motorcycle. Monu Chouhan was driving the motorcycle and Tinku Tomar was sitting behind and by another motorcycle Hira Singh and Rinku Tomar reached there. Tinku Tomar fired upon his brother Sanjay Tomar and he got injuries on neck and back and Rinku Tomar fired upon Manoj @ Balli Rana who got firearm injuries on his chest and hand. Sanjay and Manoj fell down on the spot. They were shifted to J.A. Hospital.

3. On the basis of the aforesaid report, FIR was registered at Crime No.187/2004 i.e. Ex-P/8. Investigation was assigned to S.I. D.S. Kushwaha (PW/24). Shri Kushwaha reached at the place of incident and prepared the spot map Ex-P/2. He also seized from the place of incident blood stained 'Damar' and three used cartridges and had prepared seizure memo Ex-P/4. On 8.4.2004 Dr. S.S. Jadon (PW/5) examined the injured Sanjay Tomar and Manoj Rana. The MLC is Ex-P-5 and Ex.P-6. Dr. Atul Kalwaiya has proved the x-ray report Ex-P/22. Balli @ Manoj Rana was died in the incident and Laash Panchayatnama Ex-P/3 and Marg Ex-P/9 were prepared and Section 302 of IPC was enhanced. Dr. Yogendra Pradhan (PW/13) had conducted the postmortem of the deceased. Postmortem report is Ex-P/15. Bisra of deceased seized by Ex-P/10. The clothes of the deceased Manoj Rana were seized by Ex-P/12 and thereafter the aforesaid clothes were brought to the Police Station Thana Padav. Accused persons were arrested and firearm along with used and unused cartridges were seized. The statements of prosecution witnesses were recorded under Section 161 of Cr.P.C. Seized articles were sent for scientific examination and after completion of investigation charge sheet was filed.

4. The trial Court framed the charges against the accused appellants and they have abjured their guilt and stated under Section 313 of Cr.P.C. that they have not committed any offence They have falsely been implicated in this case and accused/appellant Jitendra Singh has taken plea of alibi and has stated that on the date and time of incident he was appearing in examination at MLB college.

5. The Trial Court vide impugned judgment convicted and sentenced the appellants/accused as under :-