S.C.AGARWAL, J. - (1.) THIS criminal appeal has been filed against the judgment and order dated 20.12.2005 passed by Additional Sessions Judge/ Special Judge, Court No.7, Ballia in Sessions Trial No.31 of 2000, whereby the appellants Gaya Prasad Verma, Prayag Prasad Verma, and Shiv Kumar Verma were convicted for the offences under Sections 147, 148, 307/149 and 302/149 I.P.C. and each of the appellants was sentenced to undergo R.I. for one year under Section 147 I.P.C., R.I. for two years under Section 148 I.P.C., R.I. for ten years and a fine of Rs.2000/- with default clause under Section 307/149 I.P.C. and imprisonment for life with a fine of Rs.5000/- with default clause under Section 302/149 I.P.C. All the substantive sentences were directed to be run concurrently. The incident took place at midnight in the intervening night of 18.3.1999 and 19.3.1999 in village Rampur Hajia, police station Sikandarpur, district Ballia. The F.I.R. was lodged on 19.3.1999 at 2:50 a.m. by the appellant Gaya Prasad Verma against 8 - 10 unknown dacoits under Sections 395, 397 I.P.C. Distance of police station from the place of occurrence is 10 kilometers.
(2.) AS per the F.I.R., in the night in between 18/19.3.1999 at 12:00 midnight, 8 - 10 miscreants armed with country made pistols, guns, lathis and dandas came to the sitting room of Gaya Prasad Verma, caught hold of Kailash, Prayag, Sanjay and Vinay and confined them in a room. Thereafter, the dacoits proceeded towards the house of Lalji Verma (P.W.1), who opened his door believing that someone from the village had come to take medicine. As soon as Lalji Verma came out of the house, he was beaten by the miscreants. On his cries, his son Sri Bhagwan (deceased) and other members of the family came out to rescue Lalji. The miscreants shot at Sri Bhagwan and assaulted other members of the family with lathis, dandas and firearms. In the meantime, after hearing the cries and the gunfire, villagers Kedar, Raja, Pareekha (D.W.1), Kapur, Suresh Prasad, Raghunath (D.W.2), Manoj, Anil and Pramod came there and started pelting stones. The miscreants fired at the villagers also causing injuries to Kedar, Raja, Pareekha and Kapur. Villagers set ablaze the heap of straw resulting in sufficient light and challenged the dacoits, who could not enter the house of Lalji Verma and escaped taking away motorcycle no. U.P.60 A 0371 belonging to Kailash. While going to the police station to lodge F.I.R., Gaya Prasad Verma took the injured and witnesses to the police station with him from where they were sent for medical examination through Constable Shiv Kumar Pandey to Sikandarpur Hosiptal from where they were referred to District Hospital, Ballia. Sri Bhagwan died when he was being taken to Ballia. Injured Kedar also died after 5 - 7 days. On the basis of written report of Gaya Prasad Verma, case crime no.54 of 1999 under Sections 395, 397 I.P.C. was registered and Station Officer of Police Station Sikandarpur Sri G.P. Pandey (P.W.8) commenced the investigation. On 19.3.1999, he recorded the statements of Gaya Prasad Verma, Kumari Lalsa and Smt. Geeta. He inspected the spot, recovered eight empty cartridges of 12 bore from the spot, prepared various memos and interrogated Suresh Prasad and Kapur Chand. On 20.3.1999, he interrogated Lalji Verma (P.W.1) and Pramod and converted the case under Section 396 I.P.C. On 21.3.1999, the statements of Pareekha, Raja and Smt. Savita were recorded. During investigation, involvement of appellants Gaya Prasad Verma, Prayag Prasad Verma and Shiv Kumar Verma came to light and charge-sheet under Section 302 I.P.C. was submitted against them. Dr. A.K. Jaiswal (P.W.5), then posted as Medical Officer at C.H.C. Sikandarpur, District Ballia examined Raja on 19.3.1999 at 3:20 a.m. and found the following injuries on his person : (i)Firearm wound round in shape with narrow marginal abrasions, size 0.4 cm. x 0.4 cm. over postero-lateral area of right side of neck, 5 cm. below the right ear. (ii)Firearm wound round in shape, size 0.4 cm. x 0.4 cm. over lateral surface of right upper arm 18 cm. distal to right shoulder. (iii)Firearm wound round in shape, size 0.4 cm. x 0.4 cm. over post surface of right upper arm, 6 cm. proximal right elbow. (iv)Abrasion, size 2 cm. x 0.2 cm. Over upper part of right scapular area of back. (v)Firearm wound round in shape with narrow marginal abrasion, size 0.4 cm. x 0.4 cm. over right lateral chest wall, 5 cm. lateral to right nipple. (vi)Firearm wound round in shape with narrow marginal abrasion, size 0.4 cm. x 0.4 cm. over right lateral chest wall, 11 cm. postero-lateral to right nipple. (vii)Firearm wound round in shape, size 0.4 cm. x 0.4 cm., over right upper point of abdomen, 6 cm. above to umbilicus. (viii)Firearm wound round in shape, size 0.4 cm. x 0.4 cm. over antero-lateral surface of right leg, 15 cm. distal to right knee.
(3.) IN the opinion of the doctor, injury nos. (i), (ii), (iii), (v), (vi), (vii) and (viii) were caused by firearm, x-ray was advised whereas injury no. (iv) was simple and caused by blunt object. Duration was fresh. Injury report is exhibit ka-6. As per the x-ray report, which is exhibit ka-32, no abnormality was detected, but seven radio opaque shadows of metallic density were seen on various parts of the body. On 19.3.1999 at 3:50 a.m. Dr. A.K. Jaiswal (P.W.5) examined Kapur Chand and found the following injuries on his person : (i)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right ant. surface of neck 4 cm. above the supra sternal notch. (ii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over lower part of ant. surface of right shoulder. (iii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right lateral chest wall, 7 cm. below the right nipple. (iv)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right inguinane area of thigh. (v)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of right thigh 4.5 cm. distal to injury no.(iv). (vi)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of right thigh 11.5 cm. distal to injury no.(iv). (vii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. Surface of right thigh 27 cm. proximal to right knee. (viii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over antero-middle surface of right leg 12 cm. distal to right knee. (ix)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over antero-lateral surface of right leg 15 cm. proximal to right ankle. (x)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over dorsal surface of right ankle. All the injuries were caused by firearm. Duration was fresh. X-ray was advised. Injury report is exhibit ka-7. As per the x-ray report, which is exhibit ka-13, no abnormality was detected. Five radio opaque shadows of metallic density were found. On 19.3.1999 at 4:20 a.m. Dr. A.K. Jaiswal (P.W.5) examined Pareekha Rajbhar (D.W.1) and found the following injuries on his person : (i)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over left chest 8 cm. above the left nipple. (ii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right chest 4 cm. below the right nipple. (iii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right upper arm on ant. surface 15 cm. distal to right shoulder. (iv)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over dorsal surface of right wrist. (v)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over dorsal surface of middle finger of right hand. (vi)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of left thigh 16 cm. proximal to left knee. (vii)Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of left thigh 6 cm. proximal to left knee. ;