- (1.) NASEEMUDDIN, J. Criminal Appeal No. 243 of 1979 has been filed by Mansa Ram s/o Debi, Gulzari and Ram Chandra sons of Narain residents of village Mawai, police Asiwan and Criminal Appeal No. 248 of 1979 has been filed by Rai Narain Shukla son of Devi Sahai Shukla, resident of village Mau Mansoorpur, police station Safipur, presently residing in the town and Police Station Safipur District Unnao, against the judgment and order dated 10-3-1979 passed in S. T. No. 333 of 1978 by Shri R. P. Pandey, the then IV Additional Sessions Judge, ' Unnao, whereby the appellants were convicted for offences punishable under Sections 148, 302/149 I. P. C. , for committing the murders of Sheo Narain and Sheo Balak sons of Shanker, resident of village Mawai, PS. Aiwan, Dis trict Unnao and forming an unlawful as sembly and using fire- arms viz. Tamanchas. Raj Narain Shukla was further convicted under Section 404 I. P. C. They were sen tenced to R. I. for two years and fine of Rs. 500 each under Section 148, and to im prisonment for life on two counts under Section 302/149 I. P. C. and Raj Narain Shukla was further sentenced to two years R. I. and Rs. 500 as fine under Section 404 I. P. C. In default of payment of fine in two sentences six mor s further R. I. was to be undergone. All ' sentences were or dered to run concu entry.
(2.) THESE appeals were heard together and are being disposed of by this one com mon judgment. The case of the prosecution, as narrated by P. W. 1 Murli Prasad s/o. Shankar Prasad, brother of the two deceased persons, in brief is that Murli Prasad and his brothers had won a case from the consolidation Courts against Mansa Ram accused-appellant and muta tion over the disputed property had also been effected accordingly. Murli Prasad and his two brothers Sheo Narain and Sheo Balak were also contesting a case in revenue Courts in Unnao with respect to the landed property left by their sister Mukunda, who had died issueless, as against Raj Narain Shukla accused and Shiv Narain 'arey and Sharda-accused Raj Narain had been claiming the land as a reversioner alleging himself to be the 'bhanju of the deceased husband of deceased Mukunda, although Shiv Narain and his brothers had been looking after the land in village Methi Tikur, and Sheo Narain had been residing in the village Methi Tikur since the lifetime of Mukunda deceased. The father of Gulzari and Ram Chandra accused who are Lohar, were op posed by one Mangli Carpenter in the election of the village Pradhan; and P. W. 1 Murli Prasad and his two brothers, the aforementioned, had helped Mangli in the election. Due to this reason these two ap pellants had also been feeling enmity. An earlier occurrence had also taken place in between the two sides which was also reported to the police by lodging a report by P. W. 1 vide Ext. Ka. 1. On 29-10-1977 at about 5. 30 p. m. while P. W. 1 Murli Prasad and his two brothers Sheo Narain and Sheo Balak were returning back from Unnao after attending to the above revenue case by train which is 4 B. C. train for Safipur, where from they had to go three miles on foot to their village Mawai Lal , then the train stopped at village Methi Tikur, and then advanced a few paces, and then again stopped, when the four named accused (appellants) and one unidentified man came inside the compartment with attachies in their hands (which were men tioned to be bags having chains in the F. I. R. Ext. Ka. 2) and took out pistols therefrom and opened fires on Sheo Narain and Sheo Balak and injured them from a distance of about 1 cubit, the two injured succembed to their injuries one after the other. P. W. 1 Murli Prasad hid himself under the long seat of the compart ment in order to escape the shots. The occurrence was witnessed by Raj Narain Singh, Pahelwan P. W. 2, Raja Ram and Shanker Singh who had also boarded this train at about 4. 30 p. m. when the train had started from Unnao (according to F. I. R. Ext. Ka. 2 there were sitting many persons in the compartment ). That there was another man with these appellants who had also similarly opened fire on the two deceased in the same fashion but that man was not known to these witnesses since before the occurrence. That Raj Narain Shukla appellant snatched the gun of Sheo Narain deceased. The train stopped again and the miscreants ran away towards south in between the villages Atwa and Lootapur. The train reached Safipur at about 5. 50 p. m. On reaching Safipur P. W. 1 left the dead-body with the witnesses in the compartment and proceeded to lodge the F. I. R. at P. S. Safipur where he orally dic tated the F. I. R. (Ext. Ka. 2 ). The bogie was separated from the rest of the compart ments and was taken to the Yard. At about 8. 30 p. m. /9 p. m. , S. O. , G. R. P. came there and took down the statements of wit nesses. The inquest reports were prepared the next day on 30-10-1977. The Inves tigating Officer P. W. 11 Raja Singh, S. O. , G. R. P. investigated the case. The papers were sent by P. S. Safipur to P. S. G. R. P. , Unnao where the case was registered. After preparing of the inquest reports and memos of recovery etc. and other relevant documents the two dead-bodies of Sheo Narain and Sheo Balak were sent for autopsy and autopsy was conducted by P. W. 4 Dr. A. Akram. The investigation was completed and charge-sheet was sub mitted. One of the five charged persons viz. accused Udaibir, who had been arrested with a Tamancha and cartridges, was put up for test identification. Against him also charge-sheet was submitted. Since this person Udaibir has already acquitted and no appeal has been filed against his acquit tal and since he is not before us so the facts about his arrest, identification etc. are left over here. The appellants had pleaded not guilty to the charges and had alleged false implication due to enmity and had alleged that the case has been cooked up by manipulating ante-timed F. I. R. They pleaded alibi also. The trial Court believed the evidence as against the present appel lants and disbelieved the defence and con victed and sentenced the appellants as above. Feeling aggrieved the present ap-' peals have been filed. Learned Counsel for the appel lants and learned A. G. A. were heard in detail.
(3.) P. W. 1 Murli Prasad and P. W. 2 Pahelwan Singh are the witnesses of the factum of occurrence. P. W. 3 B. Rai is ballistic expert pertaining to the giving of opinion about the shot opened from the weapon allegedly recovered from Udaibir. P. W. 7 Ram Shankar, P. S. , Makhi; P. W 10 Mohan, Head Constable and P. W 12 B. S. Chauhan, Execu tive Magistrate are all witnesses relating to the arrest, recovery and identification etc. in respect of acquitted accused Udaibir, there fore, they have not much relevancy as far as details of the statements of these witnesses are concerned.;