POONAM SRIVASTAV,J. - (1.) THESE two appeals arise out of a common judgment dated 7.3.1989 passed by the Additional Sessions Judge, Fatehpur in Sessions Trial No. 7 of 1988. Criminal Appeal No. 570 of 1989 is preferred by accused Ram Kripal, Rajendra, Surendra, Sheo Bhushan and Man Singh and Criminal Appeal No. 568 of 1989 by accused Ram Autar, Devi Shankar and Lakhan. One accused namely Omkar alias Buddhi died during trial and case stood abated on 21.9.1988.
(2.) THE incident is alleged to have taken place on 15.5.1985 at Thariaon Ashothar road near village Semra at 4.30 P.M. F.I.R. was lodged on 15.5.1985 at 6.30 P.M. at Police Station Asothar by PW-1 Deshraj, real brother of deceased Ramraj. Two persons namely Sheo Pyare and Ramraj have died in the incident. Ram Autar, Lakhan and Surendra are alleged to be armed with DBBL gun. Devi Shankar and Rajendra are alleged to be armed with hand grenades and rest of the accused Ram Kripal, Sheo Bhushan, Man Singh and Omkar alias Buddhi, who died during continuation of the trial, are alleged to be armed with Katta. All the accused have been awarded life imprisonment under Sections 302, 149 I.P.C. Five years R.I. under Sections 307, 149 I.P.C., 7 years R.I. under Sections 395/397 I.P.C. and 2 years R.I. under Section 148 I.P.C. All the sentences are directed to run concurrently. The prosecution has examined six witnesses. Deshraj PW-1 is the first informant. Krishna Pal PW-2 is the injured witness. Dr. Swatantra Singh PW-3 who performed autopsy of both the deceased. Pitamber PW-4 is another eye witness who was declared hostile. S.O. Mansoor Ahmad Kazi PW-5 is the Investigating Officer and Head Constable Banshi Dhar Mishra PW-6 who proved the chik as he was posted at the concerned police station on the date of incident. A written report dictated by Deshraj to one Surajbhan Singh was handed over to the police station Asothar against all the nine accused at 6.30 P.M. on the date of incident. The distance of police station from the place of occurrence as noted in the chik F.I.R. Ex. Ka-25 and G.D. Ex. Ka-26 is 8 kilometres. The prosecution story as narrated in the F.I.R. is that the first informant, his brother Ramraj Singh, Krishna Pal son of Buddhu, Sheo Pyare son of Bhuri, Pitamber son of Nanku, Manbodhan son of Buddhu had gone to Barat of Mithai Lal on 14.5.1985 in village Shiv Dutt Ka Purwa, Police Station Khaga. While returning back from Barat of Mithai Lal, they were on a truck. As soon as they arrived in front their village at about 4.30 P.M., they alighted from a truck. The accused mentioned aforesaid armed with DBBL gun, hand grenades and Katta attacked them which resulted in the instant death of Sheo Pyare and grievous injury to Ramraj and PW-2 Krishna Pal. The motive attributed for murder is some previous enmity between the parties. The two sets of accused belong to different villages, one set consisting of three accused belong to village Tikar namely Ram Autar, Devi Shanker and Lakhan and other set of accused six in number belong to village Imadpur. Different motives have been alleged for both sets of accused. Regarding Ram Autar and two others, the motive attributed is that prior to the incident, there was murder of Basdeo of village Tikar, due to which there existed animosity between them. This Basdeo is the father of accused Lakhan and real brother of Ram Autar. Deshraj and five others were accused in the murder case of Basdeo. They were convicted by the Sessions Court but subsequently acquitted by the High Court. It is also alleged that there was a dispute regarding landed property of 10 bighas of village Imadpur between Shiv Mangal, Samdhi of the complainant Deshraj and Shatrughan son-in-law of accused Ram Kripal and others. Thus the existence of prior enmity in respect of landed property is also proved between complainant and accused persons. This was motive for the other six accused to have participated in the crime. As soon as the first informant and his associates got down from the truck, firing was resorted by the accused with their respective fire arms. The first informant and his party members tried to hide themselves and avoid injuries. However, Ramraj Singh, Krishna Pal Singh and Sheo Pyare fell down on the road after receiving injuries of fire arms and hand grenades. The accused persons are further alleged that SBBL gun and belt of cartridges of Sheo Pyare and also DBBL gun of Krishna Pal with cartridges were taken away before they made good their escape. Sheo Pyare died instantaneously and Ramraj and Krishna Pal were injured. After the F.I.R. was registered and two injured were sent for medical examination, the Investigating Officer proceeded to the place of occurrence and also tried to search for the accused persons. Inquest of deceased Sheo Pyare was prepared next morning and dead body was sent to the district mortuary. Site plan of the occurrence was also prepared. Blood stained and simple earth was recovered from the place of occurrence and recovery memo was prepared. He also collected the pellets of hand grenades and one plastic shoe regarding which recovery memo was prepared. The Investigating Officer received information that injured Ramraj has also scummed to his injuries, therefore, he came to the hospital and prepared inquest of the deceased Ramraj and sent the dead body to the district mortuary for autopsy.
(3.) POST mortem on the bodies of Ramraj and Sheo Pyare were performed on 17.5.1985 by Dr. Swatantra Singh, Medical Officer, District Hospital, Fatehpur. Following injuries were found by the doctor on their bodies. Post mortem on the body of deceased Ramraj 1.Lacerated wound of blast injury middle of parietal region of skull 3'' x 2'' x brain cavity deep. Brain matter was coming out. Blackening and tattooing was present with fracture of occipital bone, frontal bones and both parietal bones. Post mortem on the body of Sheo Pyare 1.Fire arm wound of entry left side back of neck 1'' x 1'' x muscle deep. Margins inverted. Blackening and tattooing was present. Direction was from back to front. 2.Fire arm wound of exit 2 ½ '' x 1 ½ '' x muscle deep. Margins everted left side front of neck 2'' from injury no. 1 and communicating with injury no. 1. No blackening and tattooing was present. 3.Fire arm wound of entry right opening of exit ear ½'' x ½'' x brain cavity deep. Margins inverted. Blackening and tattooing was present with fracture of right temporal bow, right upper and lower jaw. Direction was from right to left and forward. 4.Fire arm wound of exit just left to nose 1'' x 1'' x brain cavity deep. Margins everted. No blackening and tattooing was present communicating with injury no. 3. Injured Krishna Pal was medically examined at District Hospital on 15.5.1985 by Dr. V.K. Tripathi. His injuries are detailed herein below:- 1.II degree burn in area of 25 cm x 16 cm on the upper part of left scapular region, top of left shoulder, left side neck, auricular and mastoid ankle and outer part of left cheek. It is associated with multiple abrasions in area of 8 cm x 6 cm on the top of left shoulder adjacent to neck where there are multiple pin point lacerated wounds whose depth kept under observation. Size of abrasions varies from 4 cm to ½ cm to ½ cm x ½ cm in the burnt area. Vessels present at places, skin peeled off at places. There is blackening and tattooing present. There is singing of hairs on the left side occipital and mastoid region of head. Smell of remarkable gun powder present. Oozing of blood present. There is marked swelling in affected area. Advised X-ray. GC low, pulse 110/mt. Conscious but drowsy. Injury kept under observation. Advised X-ray. Caused by some explosive object. Duration fresh. ;