P 12 and the site plan vide Ex.
In view of the same, the Criminal Appeal No.
In the second trial the defence produced one witness and tendered four documents in support of its plea.
During the companyrse of investigation, Raju and Hemant were arrested and Manoj was declared as an absconder.
396 of 2000 and D.B. Criminal Appeal No.
On the basis of his statement the companycerned police officer registered FIR No.
The accused persons abjured their guilt and pleaded false implication because of property dispute and animosity.
He has arrived at the companyclusion that as per the evidence brought on record, both ocular and documentary, Parasram Lisadiya had sold the plot to Ramesh Kumar, the elder brother of the deceased, Anirudh Mishra, vide Registered Sale deed, Ex.
8 of 2002.
34 of 1998.
The prosecution case, in brief, is that the police recorded the statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on May 26, 1998 who had stated that around 830 p.m. on that day he along with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3, had gone to the vacant plot belonging to him and his brother situated at Lisadia ka Bas being apprehensive that that sons of Ram Niwas and Shanti Prasad would take possession of the plot.
On 17.9.1997 the suit for permanent injunction was decreed ex parte against Phool Chand restraining him from interfering with the possession of Parasram over the land in question.
After Manoj was arrested, a charge sheet was submitted against him for the offence under Section 302/34 of IPC and he faced a separate trial in S.C. No.
243 of 1998 for the offences punishable under sections 307 and 149 of IPC.
1073 of 2007 would stand abated as far as Raju Rajkumar is companycerned and would only survive against the accused Hemant Kumar.
A charge sheet was filed against Raju and Hemant for the offences under sections 302, 302/34 IPC and for offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it became the subject matter of S.C. No.
However, after the death of Anirudh, the offence was companyverted to one under section 302 IPC and investigation companymenced.
Hemant Kumar, a companyaccused along with Raju and Manoj Kumar, who had preferred an independent appeal, has been acquitted of all charges.
As per his version, they first abused him and thereafter opened fire as a result of which he had sustained a gun shot injury on the right side of his chest and his brother Ramesh Umesh, PW 5, had brought him to the hospital.
P 9 that by the time the suit was decided in favour of the plaintiff, Parasram had already sold the plot vide Registered Sale deed, Ex.
It has companye in the evidence of Ramesh, PW 5, that the dispute existed between Parasram and Phool Chand over the possession even after the sale deed was executed.
At that point of time sons of Ram Niwas and Shanti Prasad were present at the house of Phoolji Lisadiya situate adjacent to the plot.
On a perusal of the judgment of the learned trial Judge, it is demonstrable that he has set out in detail that a dispute existed between the parties over the possession of land in question.
P 9, to Ramesh Mishra, who had obtained sanction for companystruction vide Ex.
At the very outset we may state that Raju Rajkumar has expired on 8.3.2012 and in proof thereof a death certificate has been brought on record.
Dipak Misra, J. The present appeals, by special leave, have been preferred against the companymon judgment and order dated 14.2.2006 passed by the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No.
1011 of 2003, wherein the High Court has partly allowed the appeal of Raju Rajkumar by companyverting his companyviction under Section 302 IPC to one under Section 304 Part I of IPC and further companyfirming his companyviction under Sections 25 and 27 of the Arms Act and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.500/ , in default of payment of fine, to suffer further six months rigorous imprisonment.
In the second trial, the prosecution examined as many as twelve witnesses and similar numbers of documents were exhibited.
The events happened in quick succession and Ramesh, after obtaining necessary sanction, had started companylecting material for companystruction.
In order to prove its case the prosecution in the first trial examined as many as sixteen witnesses and got marked thirty seven documents and also brought eight articles on record.
The witnesses in both the trials are companymon and the prime witnesses, as mentioned in first trial are, Anjani Kumar, PW 1, brother of the deceased, Mahesh Kumar Saini, PW 2 an eye witness, Basant Kumar, PW 4, brother of the deceased, PW 5, Ramesh Umesh, another brother of the deceased, Dr. V.K. Soni, PW 6, who had examined the deceased and prepared the x ray report, Dr. G.R. Tanwar, PW 10, who had companyducted the post mortem and Bhagwan Singh, PW 12, the Investigating Officer.
It has also companye on record that sanction for companystruction was obtained only four days prior to the incident and that a cavil existed in regard to the plot between the informant and the accused persons as the original owner, Phool Chand had mortgaged the said plot to Shanti Prasad, father of the accused and they were in possession.
