G.P.MATHUR, J. - (1.) THESE appeals have been preferred against the judgment and order dated 3 6 2000 of Special Additional Sessions Judge, Shahjahanpur in S.T. No. 379 of 1992. He found the appellants Kaptan and Lal Man guilty under Sections 148, 323/149, 452 and 302/149 IPC and sentenced them to three years R.I., one year R.I., and seven years R.I., respectively, under the first three counts. The appellant Kaptan was sentenced to death under Sections 302/149 IPC while the appellant Lal Man was sentenced to imprisonment for life under the aforesaid charge. Chandra Sen who was also tried in the same sessions trial was however, acquitted of all the charges. The appellant Kaptan was also tried under Section 25 of the Arms Act in S.T. No. 105 of 1993 but was acquitted of the said charge by the same judgment and order. The appellant Kaptan has preferred Criminal Appeal No. 1407 of 2000 while appellant Lal Man has preferred Criminal Appeal No. 1450 of 2000 challenging their conviction and the sentences imposed upon them. The learned Sessions Judge has also made a reference for confirmation of sentence of death imposed upon Kaptan. Since both the appeals arise out of the same sessions trial, they are being decided by a common order.
(2.) THE case of the prosecution, as stated in the FIR and as unfolded by the evidence, in brief, is that the appellant Kaptan is son of Bhagge, and is resident of village Anta, P.S. Pachdeora, District Hardoi, while the appellant Lal Man is son of Jodha, and is resident of village Albela, P.S. Jalalabad, District Shahjahanpur. The third accused Chandra Sen, who has been acquitted by the trial Court, is resident of village Guar, P.S. Tilhar, District Shahjehanpur. Three persons, namely, Rati Ram, Lal Man and Lal Sahai, all sons of Chiranjee Lal, residents of village Sahona, P.S. Jalalabad, District Shahjahanpur, lost life in the incident and they were all real brothers of the first informant, Ram Bilas. It may be clarified here that Criminal Appeal No. 1450 of 2000 has been preferred by Lal Man, son of Jodha Lal and one of the deceased is also Lal Man who was son of Chiranjee Lal of village Sahona, P.S. Jalalabad, District Shahjahanpur. Rama, sister of Kaptan accused, was married with the Lal Sahai (deceased) about two years' before the incident. She died about a year after her marriage and Kaptan and his family members held out that Rama had been killed by Lal Sahai and others. A panchayat was held in this regard and in accordance with the decision taken therein, all the articles given by way of gift in marriage were returned to Bhagge, father of Rama and an amount of Rs. 10,000/ was also paid. At that time Kaptan accused is alleged to have given a threat that as the articles belonged to them they were taking them away, but he will certainly take revenge of the murder of his sister. The case of the prosecution further is that another sister of Kaptan is married to Brij Pal, resident of village Albela which is close to village Sahona and the appellant Lal Man is elder brother of Brij Lal aforesaid. The third accused, namely, Chandra Sen, is a friend of Lal Man accused and is said to be a notorious criminal. Nanhe @ Nanhakoo and Babu, who are also alleged to have participated in the incident in question, are said to be brothers in law (wife's brothers of Kaptan). The incident took place in the mid night of 21/22 1 1992 when the complainant Ram Bilas (P.W. 1) was sleeping along with his wife in Khaprail inside his house while his mother Smt. Raj Kumari (P.W. 3) was sleeping in a shed in the house and an improvised lamp by putting kerosene and a wick in a glass bottle was burning there. The three deceased, namely, Rati Ram, Lal Man and Lal Sahai were sleeping outside in the chaupal and their father was sleeping in the shop which is outside the house. Some others of the village, namely, Heera, Jawahar, Jeevan and Om Prakash were also sleeping in the chaupal where two similar improvised kerosene lamps were burning. At about mid night Nanhe and Babu (brothers in law of Kaptan accused) and three four others scaled the southern wall and came inside the courtyard of the house. They caught hold of the complainant Ram Bilas, assaulted him with lathis and enquired about Lal Sahai. When he refused to divulge anything, they opened the door and brought him outside where Kaptan armed with a double barrel gun and Lal Man and Chandra Sen armed with single barrel guns were standing. On account of the cries raised by Ram Bilas, his brother woke up and said who was there. After seeing Rati Ram, Kaptan said that it was he who had got his sister killed and he would not leave him and, thereafter, he fired twice upon him (Rati Ram). After pointing towards Lal Man, Kaptan said that he had given him many abuses and, thereafter, Lal Man and Chandra Sen accused fired upon him. Lal Sahai tried to conceal himself but Kaptan said that he is the real killer of his sister and, thereafter, fired upon him. Meanwhile, some persons of the village raised alarm and also fired from their guns and then the accused ran away. The accused were identified in moonlight and also the light of the improvised kerosene lamps. Out of the unknown miscreants one was carrying a rifle and another was carrying a pistol. P.W. 1, Ram Bilas, then went to village Guraiya along with some other co villagers where he dictated a FIR of the occurrence to Rajesh, son of Ram Murti Singh. He then went on a tonga to P.S. Jalalabad which is at a distance of 5 kms. from the village and lodged the FIR at 2 a.m. on 22 1 1992, P.W. 6, Mahkar Singh, Clerk constable of P.S. Jalalabad then prepared chick FIR on the basis of the report lodged by Ram Bilas. He also registered a case at 2 a.m. in the General Diary. The complainant Ram Bilas was subsequently sent to PHC, Jalalabad along with a constable where he was medically examined by P.W. 9. Dr. Rajendra Prasad, at 6.15 a.m. on 22 1 1992. P.W. 8 Ranjit Singh Bora, Inspector in charge of P.S. Jalalabad, was present and he immediately commenced investigation of the case. He proceeded for the spot on a jeep along with P.W. 5 Prem Pal Singh, ASI, P.W. 7 Sahdeo Singh, SI and some other police personnel. He recorded the statements of P.W. 2 Smt. Bhagwati, P.W. 3 Smt. Raj Kumari, Heera Lal, Jawahar and others on the spot. He prepared site plan with the assistance of complainant Ram Bilas (P.W. 1) and other witnesses. Under his guidance and direction P.W. 7, Sahdeo Singh, ASI, prepared the inquest reports of the three deceased, the bodies were sealed and were sent for post mortem examination. He also recovered some empty cartridges, tiklis and pellets from the chaupal and also from the chabutara. Large quantity of blood had fallen where the bodies of the deceased were lying and he collected plain and blood stained earth from there and prepared their recovery memos. He also examined the improvised kerosene lamps and gave them in the custody of Ram Bilas. He returned to the police station at 8. 05 p.m. in the night. He again left the police station at 9.15 p.m. along with Prem Pal Singh, ASI, and some other constables to arrest Krishan Pal Singh and Brij Pal Singh who were involved in another murder case. On the way he saw a person coming in suspicious circumstances who was also carrying a double barrel gun. Seeing the police party, he tried to run away but was apprehended and on interrogation he disclosed his name as Kaptan. He further informed the police party that the gun belonged to Mithu Lal, resident of Lokaha, P.S. Pali, District Hardoi, who was father of his brother in law Rakesh. The gun was taken in the custody and its recovery memo was prepared. The investigation was thereafter taken over by Sri O.P. Sharma, who sent the gun and empty cartridges to ballistic expert. After completion of the investigation charge sheet was submitted against the accused on 2 4 1992.
(3.) THE CJM, Shahjahanpur, took cognizance of the offence and committed the case to the Court of Sessions. The learned Additional Sessions Judge framed charges under Sections 148, 323/149, 302/149 and 452 IPC against the appellants Kaptan, Lal Man and Chandra Sen accused on 6 11 1997. Nanhe @ Nanhakoo accused could not be arrested as he absconded and, therefore, he was not put up for trial. Babu accused was killed and, as such, he also did not face trial. Kaptan accused was also charged under Section 25 of the Arms Act. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 10 witnesses including three eye witnesses and filed some documentary evidence. The accused in their statements under Section 313 Cr. P.C. denied the prosecution case and stated that they had been falsely implicated on account of enmity. The also examined two witnesses in their defence. The learned Sessions Judge believed the prosecution case in so far as Kaptan and Lal Man accused are concerned and convicted and sentenced them as mentioned earlier but acquitted Chandra Sen accused.;