DIPAK MISRA,J. - (1.) Present appeals, by special leave, call in question the defensibility of the judgment of conviction and the order of sentence dated 13.05.2009 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 1019 of 1981 whereby the Division Bench of the High Court has confirmed the judgment and order passed by the learned IV Additional Sessions Judge, Meerut in Sessions Trial No. 308 of 1979 whereunder the appellants along with two others stood convicted under Section 302 read with Section 34 of the Indian Penal Code (IPC) and visited with the sentence of life imprisonment.
(2.) Filtering the unnecessary details, the facts which are necessary to be adumbrated for the adjudication of the instant appeals are that there was enmity between the accused, Dharam Pal and his family on the one side and Charan Singh, PW-1, on the other. Charan Singh, PW-1, Gajpal, PW-2, Tedha, PW-3 and Nepal Singh belong to village Dastoi, to which the deceased, Badan Pal, the nephew of Charan Singh as well as the accused persons belong. As the prosecution story further unfurls, sometime prior to the occurrence, Gaje Singh, brother of the accused, Dharam Pal, was murdered and Charan Singh, PW-1, along with others had faced trial for his murder and eventually got acquitted.The occurrence leading to the murder of Badan Pal took place in the evening hours of 26.03.1979. Badan Pal was a student and he used to stay overnight at his tube-well which had a shed in the jungle of village Sarva. On the date of occurrence, he was at the aforesaid tube-well. Gajpal, PW-2, and Nepal Singh in the fateful evening while carrying the meals for Badan Pal, on their way, met Tedha, PW-3, who wanted to irrigate his fields from the aforesaid tube-well. All of them reached near the said tube-well about 7.30 p.m. when they heard the sound of a gun fire from inside the "kotha" (shed) of the said tube-well. They reached the place without loss of any time and noticed that all the four accused, namely, Dhani Ram, Dharam Pal, Mahendra and Vijendra, came out of that "kotha".Dhani Ram and Dharam Pal carried pistols, Vijendra was armed with a ballam and Mahendra carried a lathi. On seeing them, they took to their heels. After they reached the place, they found Badan Pal lying dead with bleeding wounds. The aforesaid witnesses identified the accused persons in the light of the electric bulb fixed on the roof of the tube-well as well as in the torch light. A report of the occurrence was prepared by Devendra Singh with the assistance of Charan Singh, PW-1, and was filed at Police Station Kharkhauda.After the criminal law was set in motion, the investigation was conducted by S.I. Rajveer Singh, PW-8, who after recording the statements of some of the witnesses under Section 161 CrPC between 6 a.m. to 8 a.m. on the next day, prepared the panchanama and the sketch map of the spot and collected blood stained and unstained earth as well as two cartridges. These were sealed on the spot and the dead body was sent for postmortem. On 29.03.1979, the investigation was transferred to S.I. V.P. Saxena and he came to learn on 11.04.1979 that all the accused persons except Dhani Ram had surrendered before the Court and had been sent to custody. Dhani Ram was arrested by S.I. V.P. Saxena at Meerut on 19.04.1979. Eventually after concluding the investigation, charge sheet was laid against the accused persons before the concerned Magistrate.
(3.) After the matter was committed to the Court of Session, charges were framed under Section 302 read with Section 34 IPC against the accused persons on 10.01.1980. The accused persons abjured their guilt and intended to face trial. The prosecution in order to bring home the charges examined 11 witnesses and marked certain documents as exhibits. Defence chose not to adduce any evidence.;