B.AMIT STHALEKAR,J. - (1.) The present criminal appeal has been filed against the judgment and order of the trial court dated 17.02.2001 passed by the Fourth Additional Sessions Judge, Farrukhabad in S.T. No.235 of 1993 convicting and sentencing the appellants to undergo imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5,000/-with default stipulation.
(2.) Briefly stated the facts of the case are that a written report was submitted by the informant- Shiv Singh, resident of village Moodh Ka Nagla, Girau, Police Station- Kayamganj, District Farrukhabad that on 28.11.1992 at about 9.30 pm. he along with his son Sumer Singh and his younger brother Mahavir Singh (the deceased) were picking potatoes in their agricultural field and after that they were sitting around a bonfire to warm themselves. Around 9.30 pm. accused Shiv Nath Singh, Mahadev, Beche and Kuber (who has died during trial) came there and asked his brother Mahavir Singh to come with them to trap and hunt birds near the pond. Mahavir accordingly went with the accused persons. Around 10.00 pm. in the night the informant heard sound of firing and also cries of Mahavir Singh for help whereupon the informant and his son Sumer Singh ran towards the pond and in the light of torch, which he was carrying in his hand, he saw that the accused persons had surrounded his brother Mahavir Singh and were assaulting him. On hearing the cries some of the villagers also came rushing to the spot with torches. The accused thereupon ran away towards the West. When the informant and his son reached the spot, they saw the bloodstained body of Mahavir, lying in the field. The informant in his written report (Ex. Ka-1) has stated that the accused Shiv Nath Singh and Mahadev were carrying Tamancha whereas Beche was carrying Takora and Kuber was carrying a lathi. It is also stated in the written report that there was old enmity between the informant and the accused persons with regard to land. The First Information Report could not be written in night because the informant was fearful of his life. The First Information Report was dictated to scribe Ajeet Singh and submitted in the Thana, Kayamganj on 29.11.1992 at 8.30 a.m. On the basis of the written report the police registered a First Information Report on 29.11.1992 (Ex. Ka-3). The distance of the Thana from the place of the incident has been mentioned as 9 km. South.
(3.) Exhibit Ka-2 is the recovery memo dated 11.01.1993 showing the recovery of the torch which was stated to have been in the possession of the informant/P.W. 1 in the light of which he saw the accused persons.;