J U D G M E N T

(Delivered on this 15th day of January, 2021)

Regard being had to the commonality of issue and since arising from the same judgment dated 20/5/2009 passed by Sessions Judge,Morena, both these appeals (Cr.A.No. 394/2009 and 500/2009) were heard analogously and decided by this common judgment. For convenience sake, facts from Criminal

Appeal No. 394/2009 are being taken.

2. is aggrieved by judgment dated 20/05/2009 passed by Sessions

Judge, Morena in Sessions Trial No. 69/2006; whereby, appellant/accused has been convicted for offence under Section 302 of IPC and awarded punishment for life imprisonment alongwith fine of Rs. 5,000/- and in default of payment of fine to further undergo one month's rigorous imprisonment. While passing the judgment, trial Court acquitted co-accused Radheshyam from charge of offence under Section 302/34 of IPC and acquitted Balveer Singh from charge of offence under Section 25/27 of theArms Act, therefore, State has preferred Criminal

Appeal No. 500/2009 against acquittal so recorded.

3. alongwith co-accused Radheshyam visited the house of deceased Surendra at 7 pm where he met his father Antram (PW/1) as well as Surendra and called Surendra for conversation. After 15-20 minutes of conversation, appellant and co-accused took Surendra alongwith them and later on appellant -Balveer Singh fired two gunshots from his country made pistol (Katta) and fled. Since, cousin of Surendra; namely Ravi Rajpoot was going from the same road, where this incident took place, therefore, he alongwith some other persons tried to take Surendra to hospital in Tractor Trolley but meanwhile police jeep came to the spot and took injured

Surendra to Police Station, where FIR was registered at 7.50 pm.

4. Hospital, Jaura, where dying declaration was recorded and after primary treatment, he was referred to District Hospital, Morena but in transit, he succumbed to the injuries and found dead at District Hospital, Morena. Case was registered and investigation carried out.

5. months from the date of incident and Katta was seized on his information vide Ex. P/9 on 1/6/2006. Another co-accused Radheshyam was arrested on 3/1/2006 after statement of Uttam Singh (PW/6) on 2/1/2006. Statement of father of deceased namely Antram was taken as PW/1, in which he referred the incident of last seen; whereby, both the accused took deceased Surendra alongwith them and evidence of Ravi Rajpoot was taken as PW/2 as eye witness. Evidence of Uttam Singh (PW/6), uncle of deceased was taken for purpose of extra judicial confession of co-accused Radheshyam. After investigation, charge-sheet was filed.

6. some were eye-witnesses , two were for the purpose of last seen theory and some were departmental witnesses. Rakesh, brother of Surendra was Court Witness, CW/1. From defence side, one defence witness was examined.

7. oral; led by the parties and necessary facets of the controversy, trial Court acquitted the co-accused- Radheshyam from charge of offence under Section 302/34 of IPC and acquitted the present appellant- Balveer Singh from charge of offence under Section

25/27 of the Arms Act but trial Court convicted him for offence under Section 302 of IPC. Incidentally, trial Court disbelieved the prosecution story on the basis of dying declaration, eye witness account, seizure of weapon and extra judicial confession of co- accused Radheshyam but only on the basis of last seen theory, convicted the appellant-accused Balveer Singh for offence under

Section 302 of IPC and sentenced him as mentioned hereinabove.

8. trial Court erred in passing the impugned judgment convicting the present appellant-Balveer Singh under Section 302 of IPC because after full fledged trial, trial Court not only acquitted the co- accused Radheshyam from the charges but also acquitted the appellant-Balveer Singh from charge under Section 25/27 of the Arms Act while disbelieving the theory of prosecution propounded through eye-witness account. He specifically stressed on the