Hon'ble Shri Kant Tripathi,J.
(Delivered by Hon'ble Shri Kant Tripathi, J.)
1. The appellant, Jagdish Nai has preferred this appeal against the judgment and order dated 18.5.2007 rendered by Mr. Shiv Ram, Additional Sessions Judge, Court No.3, Pilibhit, in S.T. No. 474 and 475 of 2004, State vs. Jagdish Nai, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant Jagdish Nai under section 302 I.P.C. to undergo imprisonment for life and also to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further imprisonment of one year and has further convicted and sentenced him under section 25 of the Arms Act to undergo rigorous imprisonment of two years and also to pay a fine of Rs.1,000/- and in default of payment of fine to undergo additional imprisonment of six months.
2. The prosecution story leading to this appeal is that the deceased Hari Om had developed illicit relations with the daughter of the appellant and that relation had come to the knowledge of the appellant, consequently, the appellant wanted to eliminate the deceased. On 3.3.2004, at about 3.00 PM, PW-2 Vidya Sagar, the deceased Hari Om, who was a real brother of PW-2 Vidya Sagar, and Shiv Om, the other brother of the complainant, were going together towards the house of Radha Krishna of the village Akhaula and when they reached in front of the house of Radha Krishna, the appellant Jagdish Nai arrived there alongwith a country made pistol. When the deceased Hari Om noticed the presence of the appellant Jagdish Nai, he entered into the house of Radha Krishna but the appellant Jagdish Nai chased him and also entered in the house of Radha Krishna and assaulted him with a country made pistol from a close range, consequently the deceased sustained a fire arm injury near the neck and died on the spot. PW-2 Vidya Sagar and his brother Shiv Om tried to apprehend the appellant but they could not do so because the appellant loaded his country made pistol again and gave threatening to kill. In this way, the appellant managed his escape. Radha Krishna's wife Smt. Rajeshwari and his son Kamlesh Kumar (PW-1) were also present inside the house at the time of occurrence and had witnessed the occurrence. PW-2 Vidya Sagar immediately went to the police station Bisalpur and lodged the FIR (exhibit ka-1) on the same day at about 17.20 hours, on which basis the police registered the case and proceeded to make investigation.
3. PW-5 Inspector Surendra Singh Degari undertook the investigation. He took bloodstained earth and plain earth from the place of occurrence and prepared its memo (exhibit ka-7). One empty cartridge was also recovered from the place of occurrence and a memo in regard to this recovery was also prepared on spot which is exhibit ka-8. PW-5 Inspector Suresh Singh Degari, after inspecting the place of occurrence, prepared the site plan (exhibit ka-9). S.I. Shyam Karan Singh prepared the inquest report of the dead body (exhibit ka-13), under the supervision of PW-5 Inspector Suresh Singh Degari and sent the dead body for post mortem examination in the sealed condition.
4. It may also be mentioned that the investigating officer arrested the appellant Jagdish Nai from his house on 9.4.2004 at about 21.30 hours and recovered from his possession a country made pistol alongwith a live cartridge. The appellant admitted his guilt before the police and stated that he killed the deceased with the fire arm recovered from him. PW-6 S.I. Munshi Ram Shukla prepared a recovery memo on spot, on which basis a case under section 25 of the Arms Act was also registered against the appellant. The investigation of the case under section 25 of the Arms Act was undertaken by S.I. Munshi Ram Shukla, who visited the place of recovery of the fire arm and live cartridge and prepared the site plan (exhibit ka-14) and after concluding the investigation submitted all the papers of the case to the District Magistrate, Pilibhit for sanction, on which basis, the District Magistrate, Pilibhit accorded the sanction (exhibit ka-15) for prosecution of the appellant Jagdish Nai under section 25 of the Arms Act.
5. It may be further mentioned that the post mortem examination on the dead body of the deceased was made by PW-4 Dr. K.K. Sharma, who after the post mortem examination, prepared the autopsy report (exhibit ka-6).
6. Apart from the aforesaid formalities, PW-5 Inspector Suresh Singh Dagri interrogated the witnesses of the case and submitted charge sheet (exhibit ka-12) against the appellant Jagdish Nai under section 302 IPC. The other investigating officer PW-7 Munshi Ram Shukla, after obtaining sanction from the District Magistrate, submitted the charge sheet (exhibit ka-16) against the appellant Jagdish Nai under section 25 of the Arms Act.
7. The learned Additional Sessions Judge charged the appellant Jagdish Nai under section 302 IPC and section 25 of the Arms Act. The appellant denied the charges and claimed to be tried.
8. In view of the fact that both the aforesaid charges were connected with each other, the learned trial court held a joint trial and accordingly examined the witnesses produced by the prosecution as well as the appellant.
9. The prosecution has examined seven witnesses in support of its case. PW-1 Kamlesh Kumar is an eye witness of the occurrence. It is alleged that the deceased was killed in his house and at that time he was present inside his house alongwith his mother. PW-2 Vidya Sagar is the complainant and was also present at the time of the incident. These two prosecution witnesses have given eye witness account of the occurrence and supported the prosecution story in its entirety.
10. PW-3 Balbir Singh has given evidence of formal nature. He has proved that the FIR (exhibit ka-1) was given by the complainant Vidya Sagar to him on 3.3.2004 at about 15.20 hours and on the basis of that FIR he registered the case for investigation in the G.D., a copy whereof is on record as exhibit ka-3. This witness had also recorded the FIR relating to the case under section 25 Arms Act and its G.D. (exhibit ka-5). He has proved these formal papers.
11. PW-4 Dr. K.K. Sharma, who did the post mortem examination on the dead body of the deceased on 4.3.2004, has proved the following ante mortem injuries sustained by the deceased:
"Gun shot wound of entry 10 cm x 8 cm x underlying structures lacerated and torn. Blackening and scorching present around the wound. The wound is extending on the front of neck, from lower part to 5 cm below the left angle of mouth.
On deep dissection Trachea, carotid arteries, muscles, mores are lacerated. Jaw bone is fractured on left side. Tikli of Kartoos and 14 pellets measuring .3 MM x .3MM found inside the brain. The brain is lacerated at many places. Meninges lacerated. Pharynx, esophagus lacerated."
12. PW-4 Dr. K.K. Sharma has further proved that the cause of death of the deceased was Coma as a result of the ante mortem gun shot injury. According to this witness, it was probable that the death of the deceased occurred on 3.3.2004 at about 3.00 PM. Pellets found inside the brain had also caused damage to the brain. During the cross examination, this witness clarified that most probably the fire was made from a distance of 2-3 feet. The witness further clarified that the fire arm injury sustained by the deceased could be caused only when the deceased was on some higher place than the appellant. In this way the medical evidence of PW-4 Dr. K.K. Sharma has fully supported the prosecution case.
13. PW-5 Inspector Surendra Singh Degri had investigated the murder case. He has proved formal papers including the charge sheet. PW-6, S.I. Shyam Karan Singh has proved the inquest report exhibit ka-13. He has further proved that the dead body of the deceased was sealed under his supervision and was sent to the District Hospital, Pilibhit through constable Tej Pal Singh and Munshi Tota Ram for post mortem examination. The chappals and empty cartridge were also sealed on spot. PW-6, S.I. Munshi Ram Shukla had investigated the case registered under section 25 of the Arms Act. He has proved the site plan, charge sheet and the sanction granted by the District Magistrate. He has further proved various papers, viz., letter sent to the Chief Medical Officer, R.I., challan lash, photo lash which were prepared on spot by Sub Inspector Shyama Karan Singh.
14. The learned trial court examined the appellant Jagdish Nai under section 313 CrPC, who denied the allegations made against him. The appellant set up the defence that the deceased Hari Om and Radha Krishna, the father of PW-1 Kamlesh Kumar, belong to one family. One Ram Gopal @ Lalloo Dayal, belonging to the family of Radha Krishna, was killed by the deceased Hari Om and PW-2 Vidya Sagar for grabbing his properties because he had no issue. The said Radha Krishna, his son Kamlesh Kumar (PW-1) and his wife killed the deceased Hari Om in his house with their licensed gun and got implicated the appellant in connivance with the complainant Vidya Sagar (PW-2) and the Police Officers.
15. In order to establish the aforesaid defence, the appellant examined DW-1 Reet Ram and DW-2 Kedar Nath. DW-1 Reet Ram stated that complainant Vidya Sagar (PW-2) had come to his house after about 12 - 13 days of the occurrence and stated that his brother Hari Om was killed by Radha Krishna, his wife and son due to an old enmity but he has falsely implicated the appellant. DW-1 Reet Ram further deposed that the complainant further stated that he would move an application to the Superintendent of Police, Pilibhit with the allegation that his brother had been killed by said Radha Krishna, his son and wife. When the complainant made this statement, DW-2 Kedar Nath was also present. This witness further stated that on the next date he alongwith the complainant and DW-2 Kedar Nath went to Pilibhit but on that day they could not meet the Superintendent of Police, Pilibhit. Then the complainant got an application transcribed in three copies and put his signature thereon. DW-1 Reet Ram further stated that a copy of the application was sent to the Superintendent of Police, Pilibhit and the other copy was sent to Deputy Inspector General of Police, Bareilly, through registered post. Copies of the said applications alongwith the postal receipts were handed over to him by the complainant Vidya Sagar for keeping in safe custody. Accordingly a copy of the application 53 Kha (exhibit kha-1) as well as postal receipts (exhibit kha-2 and kha-3) have been filed and proved by DW-1 Reet Ram. This witness further stated that on the next date he again went to Pilibhit alongwith the complainant and DW-2 Kedar Nath and on that day another application was got transcribed at the behest of the complainant Vidya Sagar, which was personally handed over to the Superintendent of Police, Pilibhit, a copy where of is on record as paper no.55 kha (exhibit kha-4). This witness has also proved exhibit kha-4. DW-2 Kedar Nath has also corroborated the statement of DW-1 in its entirety and it is not necessary to repeat the same.
16. The learned Additional Sessions Judge has elaborately dealt with the entire evidence on record and arrived at the conclusion that the charges under section 302 IPC and section 25 of the Arms Act were proved beyond all reasonable doubts against the appellant. In regard to the alleged applications exhibit kha-3 and kha-4 the learned Additional Sessions Judge found that DW-1 Reet Ram managed to obtain signatures of the complainant on blank papers with the assurance that he would move applications regarding his complaints in respect of a nali and misused the same by sending applications to the Superintendent of Police and D.I.G., Bareilly. The learned Additional Sessions Judge further found that the copies of the applications as well as the postal receipts were in the custody of DW-1 Reet Ram, and if the applications had been sent by the complainant there was no reason for him to hand over the copies of the applications and the postal receipts to DW-1 Reet Ram. The learned Additional Sessions Judge further found that a bare perusal of the applications exhibit kha-3 and kha-4 reveals that signature of the complainant was obtained on blank papers because few lines have been transcribed leaving the place where the signature of the complainant exists on the paper.
17. We have heard Dr. Abida Saeed, the learned Amicus Curiae for the appellant and learned AGA for the respondent and perused the record.
18. It is a broad day light murder, which took place at about 3.00 PM in the house of PW-1 Kamlesh Kumar. The FIR was lodged by PW-2 Vidya Sagar at about 17.20 hours on the same day without any delay. There is a distance of 10 Kms. between the place of occurrence and the police station. In this way the FIR was prompt, in which not only the relevant facts but also the motive, due to which the appellant committed murder of the deceased, have been clearly stated. There is no material addition or alteration in the prosecution story during the trial.
19. The prosecution case rests on ocular testimonies of PW-1 Kamlesh Kumar and PW-2 Vidya Sagar. PW-1 Kamlesh Kumar has very clearly stated that he was present in his house alongwith his mother Rajeshwari Devi at the time of the incident. This witness has stated that the deceased came inside his house in the running condition and the appellant Jagdish Nai who was chasing the deceased, also came inside the house and on coming inside the house, assaulted the deceased with a fire arm, consequently the deceased Hari Om died on spot. This witness has further stated that complainant Vidya Sagar (PW-2) and his other brother Shiv Om had also arrived there. The appellant Jagdish Nai, after killing the deceased, fled away and could not be apprehended. This witness further stated that he had given his affidavit to the Superintendent of Police, Pilibhit in which he had supported the prosecution story. This witness proved the affidavit in the witness box. The learned counsel for the defence has cross examined this witness at length but nothing material could be brought on record to discredit his testimony. This witness denied the suggestion that the deceased belonged to his family. No doubt this witness stated during the cross examination that he was not aware of the reasons behind the murder and he was not aware as to whether the deceased had any illicit relations with the daughter of the appellant or not, but, in our opinion, these circumstances do not in any way shake the credibility of the witness (PW-1 Kamlesh Kumar). Ordinarily the person developing illicit relations, try to keep the same secret, therefore, in most probability it is not ordinarily known to others. In this view of the matter, the evidence of PW- 1 Kamlesh Kumar can not be discarded on the aforesaid ground. His statement could not be shaken in any way in regard to the complicity of the appellant, mode, manner and place of the occurrence. The presence of this witness at the place of occurrence is highly probable because admittedly the occurrence took place in his house. In this way, his presence at the time of occurrence can not be doubted. Therefore, in our opinion, the learned trial court has rightly believed the statement of PW-1 Kamlesh Kumar.
20. PW-2 Vidya Sagar is the complainant and brother of the deceased. He has also given an eye witness account of the occurrence. He has also been subjected to cross-examination at length but nothing material could be brought on record to discredit his testimony. PW-2 Vidya Sagar has very clearly stated that the deceased had developed an illicit relation with the daughter of the appellant, who had come to know that relation. This witness has further stated that when the appellant came to know about the illicit relation, he required the deceased to part with the illicit relations with his daughter. This witness has further clarified that a quarrel had also taken place between the deceased and the appellant and at that time he himself intervened in the matter and requested for a pardon and assured that the things will not be repeated. On account of that quarrel and illicit relation, the appellant Jagdish Nai seems to have developed an enmity with the deceased and as such wanted to eliminate him. In this way, PW-2 Vidya Sagar has very categorically proved the motive behind the occurrence, which was stated even in the FIR. In this view of the matter, there was a strong motive for the appellant to eliminate the deceased. PW-2 Vidya Sagar has further supported the prosecution story that the appellant killed the deceased with a fire arm in the house of PW-1 Kamlesh Kumar.
21. The statements of the aforesaid witnesses find corroboration from the medical evidence of PW-4 Dr. K.K. Sharma, who has proved that the death of the deceased occurred due to the ante mortem fire arm injury, which was caused with a fire arm from a close range (2-3 feet). The evidence of PW-4 Dr. K.K. Sharma could not be shaken during the cross-examination. Recovery of an empty cartridge and bloodstained earth from the place of occurrence, further corroborates the prosecution story.
22. In our opinion, the learned Additional Sessions Judge has made evaluation of the ocular testimonies of the aforesaid eye witnesses as well as the medical evidence in a correct and proper manner and there does not appear to be any error on the part of the Additional Sessions Judge in arriving at the conclusion that it was the appellant who committed the murder of the deceased.
23. Learned Amicus Curiae, however, submitted that the mother of PW-1 Kamlesh Kumar was allegedly present at the time of the incident but she has not been examined and the prosecution has not given any explanation as to why she was not examined. The complainant's other brother Shiv Om, who was alleged to be present on the spot, has also not been examined, therefore, the prosecution story is highly doubtful. It was next submitted that PW-1 Kamlesh Kumar belongs to the family of PW-2 Vidya Sagar, therefore, he is an interested witness and on this ground too his testimony can not be relied on. In our opinion, when the statements of PW-1 Kamlesh Kumar and PW-2 Vidya Sagar, on careful scrutiny, are believable and their presence at the scene of occurrence is highly probable and their statements are consistent with the medical evidence and other facts and circumstances of the case, their testimonies can not be discarded on the ground that other witnesses, namely, Rajeshwari Devi and Shiv Om have not been examined. It is well settled that it is the duty of the court to assess intrinsic worth of the testimonies of the witnesses examined by the prosecution and if their evidence appears to be truthful, reliable and acceptable mere fact that some other witnesses have not been examined, they would not adversely affect the prosecution case. This proposition has been propounded in the case of Pohlu vs. State of Hariyana (2005) 10 SCC 196.
24. So far as the submission of the learned Amicus Curiae that PW-1 Kamlesh Kumar is an interested witness is concerned, it has also no substance. PW-1 Kamlesh Kumar has denied that he belongs to the family of the complainant or is related to him in any way. For arguments sake, if it is assumed that he is distantly related to the complainant, this may not be a ground to discard his testimony, which seems to be believable. Testimony of a witness can not be discarded only on the ground that he is an interested witness or is related in any way to the deceased. In the case of Nagarjit Ahir vs. State ofBihar, AIR 2005 SC 722, the prosecution evidence adduced by the family members or relatives of the deceased was found reliable and no importance was given to the fact that a large number of persons had gathered at the place of occurrence, but none of them was examined. In the cases of Bhargavan vs. State of Kerala 2004 Cr.L.J. 646, State of U.P. vs. Jagdeo and others AIR 2003 SC 660 and Sardul vs. State of Hariyana AIR 2002 SC 3462, it has been held that evidence of interested witnesses can not be discarded on this ground. Relationship is not a factor to affect credibility of a witness.
25. Learned Amicus Curiae gave much stress on the defence story regarding the subsequent conduct of the complainant (Vidya Sagar). According to the learned Amicus Curiae, PW-2 Vidya Sagar, by giving applications to the Deputy Inspector General of Police and the Superintendent of Police, implicating therein Radha Krishna and his son and wife as the persons who killed the deceased, exonerated the appellant, therefore, the appellant can not be convicted and is entitled to the benefit of doubts.
26. The defence story seems to be patently absurd. If the deceased had been killed by Radha Krishna, his wife and son, there was no reason for the complainant Vidya Sagar (PW-2) to exonerate them and implicate the appellant Jagdish Nai as murderer. No person would like to exonerate the real culprit and implicate some other person in his place. When the complainant Vidya Sagar lodged the FIR without any delay and stated that it was the appellant Jagdish Nai who killed the deceased and supported this story even during the investigation, there was no reason for him to go to DW-1 Reet Ram and require him to inform the Superintendent of Police, Pilibhit regarding the real culprit. It may not be out of context to mention that copies of the alleged applications (exhibit kha-1 and kha-4) and both the postal receipts (exhibit kha-2 and kha-3) were not in the custody of the complainant Vidya Sagar nor were produced by him during the trial. These papers allegedly came on record from the custody of DW-1 Reet Ram. This circumstance creates a doubt regarding the credibility of the applications (exhibit kha-1 and kha-4) and it appears that some fowl play had been done by DW-1 Reet Ram in connivance with the appellant for creating a defence. More so the original applications which were allegedly given to the Superintendent of Police Pilibhit and D.I.G. Bareilly were not summoned by the appellant from the offices of the Superintendent of Police, Pilibhit and DIG Bareilly nor they were proved in any way. Only copies thereof were produced and proved. In order to answer the question whether or not the aforesaid applications were given to the Superintendent of Police, Pilibhit and D.I.G. Bareilly, the proper course for the appellant was to summon those applications from the office of the Superintendent of Police, Pilibhit and D.I.G. Bareilly but no such attempt was made.
27. It may not be out of context to mention that when statement of PW-2 Vidya Sagar was being recorded on 23.2.2006, the copies of the aforesaid applications were shown to him but he very specifically stated that his signatures were not on the applications. After about one year, on 11.5.2007, PW-2 Vidya Sagar was summoned under section 311 CrPC for further cross examination. During the course of further cross examination, this witness admitted his signatures on the aforesaid applications but denied the contents thereof and clarified that DW-1 Reet Ram was Pradhan of the village. He had requested DW-1 Reet Ram before his election as Pradhan and also after his election for construction of a nali. DW-1 Reet Ram obtained his signatures on blank papers and misused the same in this case. This statement of PW-2 Vidya Sagar remained intact during cross examination and could not be shaken in any way. This explanations of PW-2 Vidya Sagar regarding applications Kha-1 and Kha-4 seem to be correct in view of the fact that these two applications along with the postal receipts were not produced from the proper custody and there was no reason for the complainant (PW-2 Vidya Sagar) to hand over copies of the applications and postal receipts to D.W.-1 Reet Ram.
28. For arguments sake, if it is assumed that the aforesaid applications were given by PW-2 Vidya Sagar, the same is nothing except his previous statements made during the investigation and the same could be used only for contradicting his statement recorded during the trial. But in this case the relevant facts mentioned in the applications have not been specifically put to the complainant during the cross - examination nor he was confronted therewith as required by section 145 of the Evidence Act and therefore, the applications Exhibit kha-1 and kha-4 can not be used to discard the ocular testimony of PW-2 Vidya Sagar (complainant). The learned defence counsel had merely read over the applications without putting the relevant contradictory portion to the witness. Mere reading over the applications kha-1 and kha-4 was not a sufficient compliance of the requirements of section 145 of the Evidence Act. It was the duty of the defence counsel to pick up those portions of the statements existing in the aforesaid applications, which were inconsistent with the statement of PW-2 Vidya Sagar recorded in the court and to confront him with that portion during the cross-examination. It was also the duty of the defence counsel to provide an opportunity to PW-2 Vidya Sagar to explain the circumstances due to which the inconsistent statements were made in the aforesaid applications.
29. Section 155 (3) of the Indian Evidence Act provides for impeaching credit of a witness on the basis of proof of his former statement inconsistent with any part of his evidence, which is liable to be contradicted. In other words, if any witness makes any statement during the trial, which is inconsistent with his previous statement, his evidence in the court can be contradicted with the previous statement by proving the former statement. In doing so the provisions of section 145 of the Indian Evidence Act must also be kept in mind, which consists of two parts. The first part provides that a witness may be cross-examined as to the previous statement made by him in writing or reduced into writing, and relevant to the matters in question, without such writing being shown to him or being proved, whereas the second part provides that if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it, which are to be used for the purpose of contradicting him. In other words, if the maker of the contradicting statement is sought to be contradicted, his attention must be drawn to his previous statement as required by section 145 of the Indian Evidence Act so as to provide him an opportunity to explain the discrepancy or inconsistency and to clear up the ambiguity.
30. In the case of Binay Kumar Singh vs. State of Bihar (1997) 1 SCC 283, the Apex Court considered the ambit and scope of sections 145 and 155 (3) of the Evidence Act and held as follows:
"12. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court. This principle is delineated in Section 155 (3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness maybe cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that "if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him". There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145."
31. The aforesaid principle has been reiterated by the Apex Court in the case of Karan Singh and others vs. State of M.P. (2003) 12 SCC 587 as follows:
"When a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement it does not amount to any admission and if it is proved that he had given such a statement the attention of the witness must be drawn to that statement. Section 145 of the Evidence Act is clear on this aspect. The object is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute....."
32. In view of the facts and circumstances of the case stated above, the defence story as well as the applications Exhibit Kha-1 and Kha-4 seem to be nothing except a concoction and fabrication, therefore, the same can not be taken as a basis to discard the ocular testimonies of PW-1 Kamlesh Kumar and PW-2 Vidya Sagar.
33. The learned Amicus Curiae lastly submitted that PW-2 Vidya Sagar has admitted that he was an accused alongwith his brother in the case of murder of one Ram Gopal @ Lalloo Dayal, who had no issue. It was further submitted that murder of Ram Gopaql @ Lalloo Dayal was committed to grab his property. PW-1 Kamlesh Kumar belongs to the family of said Ram Gopal @ Lalloo Dayal, therefore, he had a motive to kill the deceased Hari Oam on account of vengeance. In this connection, it may be mentioned that there is no evidence that PW-1 Kamlesh Kumar belongs to the family of Ram Gopal @ Lalloo Dayal. In fact the evidence is that the deceased Hari Om and PW-2 Vidya Sagar belong to the family of Ram Gopal @ Lalloo Dayal. There does not appear to be any reason to believe that PW-1 Kamlesh Kumar, his father and mother had any grudge against the deceased on account of murder of Ram Gopal @ Lalloo Dayal. Therefore, this submission also fails.
34. In regard to the charge under section 25 of the Arms Act, no argument was advanced on behalf of the appellant. PW-5 Inspector Suresh Singh Degri has proved the recovery of country made pistol and the live cartridge from the possession of the appellant and nothing material could be brought on record to discredit his testimony, therefore, the learned trial court has rightly believed the prosecution story in regard to the charge under section 25 of the Arms Act.
35. In our view, the learned trial court has rightly found the charges under section 302 IPC and section 25 Arms Act, proved beyond all reasonable doubts.
36. The quantum of the sentence does not appear to be excessive or unreasonable, therefore, it is not proper to interfere with the sentence.
37. For the reasons stated above, the appeal has no merit and is accordingly dismissed.
38. Dr. Abida Saeed, the learned Amicus Curiae, shall be paid Rs. Ten thousand only from the State Exchequer towards her legal remuneration for arguing the appeal on behalf of the appellant.
39. Let a copy of this judgment along with the lower court record be sent to the Sessions Judge, Pilibhit for compliance.
Order Date:-24.9.2010 RKSh.