- (1.) Leave granted.
(2.) Challenge in these appeals is to the judgment of a Division Bench of the Allahabad High Court dismissing the appeal filed by the five appellants before the High Court. The present appellants, his two sons Yatindra and Surendra alongwith Ram Kripal, Gajendra and Govind were tried by learned IInd Additional Sessions Judge, Mainpuri for alleged commission of offences punishable under Sections 147, 148, 302 read with Section 149 and Section 307 read with Section 149 of the Indian Penal Code, 1860 (in short the IPC ). The trial Court acquitted accused Govind but rest of the five accused were convicted for offences punishable under Section 302 read with Section 149 IPC, 307 read with Section 149 and Section 148 IPC. Life sentence, five years rigorous imprisonment and two years rigorous imprisonment respectively were imposed.
(3.) Background facts in a nutshell are as follows: he informant Vijay Bahadur is a resident of village Sakaragarhi, P.S. Kishni, district Mainpuri. There was a litigation between Smt. Rama Devi and appellant Raj Nath resident of Nagla Tara in which Raj Nath lost in the litigation before court. In the said litigation, informant Vijay Bahadur had helped Smt. Rama Devi. Four months prior to the incident Rama Devi had sold 16 bighas of her land to Lokeshwar Nath (PW-2) nephew of informant which sale was not relished by the appellant Raj Nath and his sons and they started nurturing animosity for the informant. On 18.5.1978 appellant Raj Nath and others plucked Jackfruits from trees standing over the land purchased by Lokeshwar Nath regarding which a first information report was lodged by him. On the date of the incident i.e. 5.6.1978 at 6.00 P.M. Vijay Bahadur along with his sons Narendra Nath and Mahendra accompanied by Lokeshwar Nath and Shrawan Kumar had gone to the house of his cousin Ram Prakash in village Nagla Tara, also the village of the accused, for hearing Bhagwat and to participate in the feast thereafter. After taking meal they were returning to their village along with Murari Lal and Mitthu Lal Gadaria. When they reached near the house of Kalka Prasad at 6 p.m. the accused appellants Raj Nath, his sons Satyendra and Surendra, Gajendra, Ram Kripal and Govind came there from the south western corner of the brick wall and threatened that they will teach a lesson to Lokeshwar Nath for purchasing the land and immediately thereafter appellant Raj Nath with his licensed gun and rest of the appellants with their country made pistols opened fire at the prosecution party. Lalit Kumar (hereinafter referred to as the deceased No. 1 ) sustained gunshot injury and died instantaneously. Narendra Nath and Shrawan Kumar sustained firearm injuries and fell down at a short distance. Lokeshwar Nath and Mahendra Nath also sustained firearm injuries. Gun fire attracted Prem Narayan and many others to the place of the incident. When the injured were being transported to the hospital in the bullock cart by the informant, injured Narendra Nath (hereinafter referred to as deceased No. 2) lost his life in the way. Shrawan Kumar, Mahendra and Lokeshwar Nath were dispatched to the District Hospital, Mainpuri. Informant got the FIR (Ex.Ka-7) of the said incident scribed through one Arun Kumar and lodged it at police station Kishni on the same day at 10.30 p.m. covering a distance of 8 miles south. Lajja Ram PW-4 Constable clerk prepared the chik Fir Ex. Ka-6 and G.D. entry Ex.Ka- 7 and the investigation was immediately engineered by Mahendra Prasad Singh S.O. PW-10. Investigating Officer proceeded to the village Kusmara where the corpse of Narendra was lying and there he conducted the inquest on his dead body as Ex.Ka-38. Thereafter, he came to the place of the incident in village Nagla Tara near the dead body of Lalit Kumar and conducted the inquest. Thereafter he conducted spot inspection and prepared site plan Ex. Ka-47 collected blood stained and plain earth Ex. Ka-48. He also recovered empty cartridges (material Ex.1 to 3) from the roof of Kalka Prasad and prepared its recovery memo Ex.Ka-49. He thereafter arrested appellant Ram Kripal and recovered country made pistol and three cartridges from him. On 5.6.1978 he recorded the statement of the informant and thereafter in the morning he prepared the inquest report of Narendra Nath deceased who had expired in the hospital at 5.20 a.m. next day. Thereafter he was transferred. Shrawan Kumar also lost his life after four days in the hospital because of the sustained injuries in the incident. The post mortem examination on the dead bodies of Shrawan Kumar, Lalit Kumar, Narendra Nath and Mahendra Nath was held and various gunshot injuries and ante mortem injuries were found on their bodies. The report of Forensic Science Laboratory, Lucknow, U.P. dated 31.7.1978 brought out the fact the cartridges E.C.-3 was fired from countrymade pistol marked as 1/79. After investigation charge sheet was filed and charges were framed against all the six accused persons. Since the accused persons pleaded innocence trial was held. PWs 1 and 2 were stated to be the eye witnesses. Placing reliance on the evidence of the eye witnesses the trial Court found the prosecution case to have been established and recorded conviction as noted above. Before the High Court the stand was that there was no recovery of gun and no injury is relatable to any act purported to have been done by the appellants. The High Court did not accept this plea and held that because of application of Section 149 IPC the prosecution case has been fully established.;