- (1.) These appeals are directed against the judgment dated 03.07.2000 passed by the High Court of judicature at. Allahabad in Criminal Appeals Nos. 2311, 2234 and 2243 of 1980, by which the High Court has set aside the judgment of conviction of accused (respondents herein) passed by the Additional Sessions Judge, Aligarh, U.P.
(2.) Brief facts which are necessary to dispose of these appeals are recapitulated as under: The prosecution version, as set up in the first information report by Shri Bhagwant Singh, PW2 is that on 1.9.1979 at about 7.45 p.m. in the evening, Hiralal Yadav, the elder brother of the complainant, Kundan Singh, Chhabi Nath Singh, Tikam Singh and Chandan Giri were sitting in the open area of the house of Bhagwant Singh. Aidal Singh, the younger brother of Hiralal and the ladies of the family were inside the house. At that time, about 10 to 15 persons armed with country-made pistols, guns and other weapons entered the house of the complainant. They came for committing dacoity as mentioned in the FIR. They started indiscriminate firing and in the process they killed Hiralal and Aidal Singh and injured Smt. Longshree and Chandan Giri. It is further disclosed in the FIR that the miscreants inquired about the property articles from Suit. Longshree and looted licensed single barrel gun of Aidal Singh and some other articles, the details of which were not given in the FIR. There was moonlight and lantern light at the spot where the incident had taken place. Amongst the miscreants, accused Sukhpal, Harpal, two brothers, sons of Rabti Singh, Ajanti, resident of village Sikanderpur and Munna Giri, resident of Sitapur have been identified in the moonlight and the lantern-light. According to the prosecution, they remained on the spot with other miscreants for about half an hour.
(3.) It is stated that the incident had taken place on 1.9.1979 at 7.45 am and the FIR was lodged at 9.15 p.m. on the same night. The case against the accused persons was registered and investigated. 4 The injured eye witnesses were medically examined on the same night at the Primary Health Centre, Sikandrarao by Dr. S.K. Jha. The condition of Hiralal and Aidal Singh was precarious and their dying declarations were recorded at Sikandrarao by Shri Ram Autar Saxena, Tehsildar Magistrate, PW9. Later on, both Hira Lal and Aidal Singh succumbed to their injuries. 5. Aidal Singh in his dying declaration specifically named Sukhpal Singh as assailant who had fired at him and Hiralal named Sukhpal, Harpal and Ajanti whom he had identified and who had fired shots at him. He also stated that there were 10/15 persons armed with double barrel guns. They had given beatings. In the instant case, according to the prosecution version, two persons namely Hira Lal and Aidal Singh were killed and Chandan Giri, PW3 and Smt. Longshree PW5 wife of Hira Lal were injured. The accused persons were recognized in the light of lantern and moonlight. The accused persons were otherwise known to the witnesses. The complainant has stated that Sukhpal and Harpal were his cousins and Ajanti was accused s sarhu (brother-in-law -husband of the sister of the wife of accused Sukhpal). Accused Munna Giri was also known to him as the sister of Munna Giri was married in his village and in that connection Munna Giri used to visit this, village off and on. Both the accused and Sukhpal were friends. 6. Chandan Giri, PW3 had executed a sale deed of some of his abadi land in his favour and in favour of his two brothers on 20.7.1979 for which agreement has been executed on 6.6.1979 and Chandan Giri after the execution of the sale deed parted with the possession of that land. Before the execution of the said sale deed, accused Sukhpal got a sale deed of the same land executed in his favour from Chhauttan Giri and Jamuna Giri and for that matter proceedings under Sections 107 and 145 of Cr.P.C. were started and when there was much tension on that account, Hira Lal had reported the matter to the police and. consequently, FIRs were lodged. 7. PW.3 Chandan Giri stated that on 1.9.1979 at about 7.45 in the evening, while he was returning from the temple after worshipping the deity, Chhabi Nath, a close relation of Hiralal who was sitting in front of the door of the house of Hiralal called him and he accordingly went to him where besides him Tikam Singh, Hiralal and Kundan Singh were also present. While they were sitting there, some miscreants came on the spot armed with guns and other weapons. Out of the miscreants, he could identify accused Harpal, Shikhpal, Ajanti and Munna Giri who were otherwise known to him held fire arms in their possession. The miscreants also entered the house of Hiralal and caused injurie s to Aidal Singh and others who were inside the house. He stated that the accused persons had also removed the licensed gun from the house of Hiralal. 8. Dr. K.A. Singh, PW4, on next day i.e. on 2.9.1979 at 4.45 p.m. conducted the post mortem of Aidal Singh and he found the following injuries: 1. One gun shot wound of entrance 1-1/3" x3/4" x chest and abdominal cavity deep on left side front of chest, 41/2a" below the left nipple. No tattooing, no blackening was found in the injuries. 2. One gun shot wound of exit 3/4" x 1/2" cavity deep on right side on posterior axillary line. 3. Multiple abrasions in area of 61/2"/ x 31/2" around injury No. 1.;